Photo: Carmen Natale/ALM

On May 28, the New York Law Journal published an article called "State Bar Group Calls for 'Mandatory' COVID-19 Vaccinations, Regardless of Objections." The headline itself was jolting enough. I thought it was clickbait, but my morbid curiosity made me open it. When I did, I was dismayed to discover that a section of the New York State Bar Association (NYSBA) proposed in a report mandatory COVID-19 vaccinations for all adults, regardless of "religious, philosophical or personal reasons." I could not believe this was being advocated in America. To my knowledge, no other bar association in this country is advocating such a position. To be fair, the section's proposal has not yet been voted on by the full membership. The fact, however, that NYSBA commissioned a section to come up with this report, speaks to its relevancy.

NYSBA's membership has been declining for years and the decisions to commission this report and remain silent as Governor Cuomo determined lawyers weren't "essential" are part of the reasons for the decline. More specifically, NYSBA took no action in response to Governor Cuomo's March 20 COVID-19 lockdown order, which failed to include lawyers in the list of essential workers. According to Law360, New York and Michigan were the only two states that failed to declare all lawyers essential. In my March 22 Daily News op-ed, I challenged Cuomo's failure to designate criminal defense attorneys as essential. That same weekend, the New York State Association of Criminal Defense Lawyers (NYSACDL) did the same. By Sunday, March 23, criminal defense lawyers were deemed "essential." That same week, Fox News invited me to speak about my op-ed, and there, I criticized Cuomo's failure to include all lawyers as essential.

Despite NYSBA's claim that it is "the voice of the legal profession in New York state," in a marked failure of leadership, it never lobbied Cuomo to declare all lawyers as essential. In fact, on March 26, NYSBA sent a letter to Cuomo "commend[ing] [him] and each of [his] respective offices on the clear direction and outstanding leadership demonstrated in these unprecedented times."

Contrast NYSBA's inaction and praise for Cuomo with the immediate action taken by the New Jersey State Bar Association (NJSBA) when Governor Phil Murphy was considering shutting down New Jersey lawyers. On March 18, its president, Evelyn Padin, sent a letter to Murphy stating that "the public's right to access to justice is one of the core foundations of a just and civilized society. Shutting down such access is not something that can be taken lightly." By March 23, Murphy clarified his order so that Jersey attorneys could work from their offices but required work from home "whenever practicable." NJSBA's decisive and effective action demonstrated its relevance to its members.

Back on this side of the Hudson, NYSACDL, along with nearly 30 other bar and public defender organizations, challenged a different Cuomo order suspending a pretrial detainee's right to petition for release. This order was especially perplexing in light of the obvious danger COVID-19 posed to prison populations. NYSACDL's president, Timothy Hoover, wrote that Cuomo's order "denies judges and advocates the ability to do justice at the local level, when local actors are in the best position to assess the public health threat to people being held pretrial."

While NYSACDL has repeatedly demonstrated its relevance to New York's criminal defense lawyers, NYSBA has not done so for any lawyers. New Yorkers need access to justice—both in criminal and civil courts. Both sets of courts are still greatly limited in their functioning. Despite the public's lack of access to the courts, NYSBA never took a position like that of its sister bar organization across the Hudson, which warned its governor that "the public's right to access to justice is one of the core foundations of a just and civilized society [and that] [s]hutting down such access is not something that can be taken lightly."

After a major membership decline in 2019, NYSBA launched a global bar initiative in 2020 that led to deals with two Korean and Japanese bar groups. Perhaps with more focus on its members, serving as a check on Cuomo decisions to the extent they impact lawyers and clients, and by refraining from seeking forced vaccinations, it wouldn't need to look outside the country for members. In the meantime, consider supporting NYSACDL and its umbrella organization, the National Association of Criminal Defense Lawyers.

Vinoo Varghese is a criminal defense attorney and former prosecutor.