Bar sections respond to COVID-19 and prepare for the recovery
Closing courthouses and law offices and slowing the economy, COVID-19 has been a universal threat to the legal community.
But to Florida Bar sections and divisions, the pandemic has brought challenges — and opportunities — as varied as the specialties they serve.
The Business Law Section, one of the largest and arguably one of the most impacted, worked quickly to put its long reach and organizational strength to work, said Chair Jay Brown.
“We already have free CLE’s,” Brown said. “The Bar asked us to do a one-hour CLE, and we’re at three and growing,” he said.
On April 3, the Executive Council voted unanimously to create a “COVID-19 Pandemic Recovery Task Force.”
Co-chaired by Bart Valdes and Detra Shaw-Wilder, the taskforce includes some 30 members, including judges, legal scholars, and experts with a variety of talent and experience.
The mission is deliberately broad, but forward looking, Brown said.
“We call it the recovery taskforce, because we view it as we’re going to get out of this thing, and that’s the way it’s going to be,” Brown said. “The group that rallied for the taskforce has really done a great job getting content posted and trying to create a hub of resources.”
Beginning with “Advocacy and Technology Tips When Working from Home During COVID-19,” the task force website boasts an impressive list of content that continues to grow.
One of the most sobering listings is a live, May 7 webinar, “Business Litigation in Crisis: Contract Enforceability, Business Interruption and Inverse Condemnation in the Wake of COVID-19.”
Just as ominous sounding is an invitation to the webinar, “Business UNusual: A Practical Overview of Bankruptcy in Florida Amidst COVID-19.”
Business Law Section members are expecting an avalanche of legal disputes as unemployment skyrockets, businesses fail, and untold contractual obligations go unfulfilled. Bankruptcy filings and foreclosures are already climbing, Brown said.
“We’ve never seen anything like this, and as far as impact, we don’t know yet, because we’re still in the midst of it,” he said.
Section leaders are focusing on triage, he said.
“We’re working with the legal aid organizations and The Florida Bar Foundation to try and be a resource for them,” Brown said. “As we know, there are going to be a lot of people that are in need.”
The task force website links to an ABA “Model Standstill/Tolling Agreement” that proposes a brief pause in litigating contractual and other disputes.
“Mass foreclosures would be economically suicidal,” the ABA authors state.
Brown said he agrees with the concept wholeheartedly, but “getting all of the parties to agree could be difficult.”
“Hopefully you’ll see parties counseled by their lawyers to say, hey, consider doing something like a standstill, or, let’s even work harder to find solutions and not have to involve the court, which would probably be to nobody’s benefit at the end of the day,” he said.
The Health Law Section’s 1,600 members, who mostly represent clients in the health care and insurance industry, have been rushing to meet client demands, said Chair Everett Wilson.
“One of the busier types of attorneys in a health-care crisis is a health-care attorney,” Wilson said. “A lot of our clients, across an entire industry, have had to take immediate action, and none of them, really, fall outside of essential services.”
At the same time, Everett said, section leaders have had to scramble to postpone CLE events that were scheduled for April, a logistical headache and an added complication in a section that serves its members so exclusively.
“The only place to get Florida substantive health law CLE is typically through us,” he said. “While there’s a lot of national programs, they don’t touch on Florida law.”
Section members have had to help their health-care provider clients navigate a blizzard of changing regulations while guiding them through the application process for billions of dollars in congressionally authorized stimulus funds, Wilson said.
And health-care providers are often the largest employers in any given community, raising more issues, Wilson said.
“On the labor and employment front, a lot of employees don’t want to show up, but because they’re an essential service, they’re not furloughed,” he said. “There’s the law, but you have to be sensitive.”
Wilson recalls advising health-care executives at the beginning of the crisis.
“I’m telling them, look, there’s changes in these laws, what are you doing when people show up at the emergency room, just real practical type of advice, and the CEO interrupts and says, ‘Everett, my biggest issue right now is getting protective equipment, forget ventilators.’”
Many health-care providers are switching to telemedicine, raising a host of regulatory issues, such as prescribing controlled substances, Wilson said.
“During the first two weeks, the things that came up were the prior laws and various exemptions from that, and very little clarity coming from the various authorities,” he said. “Fortunately, the governmental authorities have provided some clarification on that.”
While lawyers across Florida are worried about a souring economy and its impact on their livelihoods, Health Law Section members have been working harder than ever, Wilson said.
Section leaders will be helping members deal with the immediate demands of the COVID-19 crisis, but more thorough content will be developed that is forward-looking, according to Wilson.
“Because of the timing, they’re going to be more related to exiting the crisis,” he said.
Public Interest Law Section
The Public Interest Law Section is one of the smallest, but that hasn’t stopped section leaders from moving quickly to provide valuable content for 350 members, said Chair Ericka Garcia.
The section is sponsoring a May 7 webinar, “COVID-19, Landlords and Tenants: Housing Law During COVID-19.”
Largely made up of public defenders, prosecutors, and legal aid lawyers, the section expects its clients, many of them indigent or low-income, to bear the brunt of the economic fallout.
“Housing is going to be a big issue,” she said.
Since public schools switched to online instruction, some transgender youth are reporting problems with the way the platforms identify them to their peers, Garcia said.
“Their classmates may have not known that they legally had a different name, it’s kind of like being outed,” Garcia said, stressing that the problem is technical, and not the fault of school districts.
PILS members have been trading information about court procedures for such things as dependency hearings, and tips on how to prepare indigent clients for online hearings, Garcia said.
As CEO of Collaborative Justice Partners, a national consultant for legal aid societies, Garcia said she is seeing a decrease in legal aid traffic across the nation since the COVID-19 crisis began.
But that is expected to change in the coming months, Garcia said, after clients deal with the immediate fallout. That’s usually the way disasters work in legal aid, she said.
“It takes a little while for legal aid clients to show up at legal aid, because first, it’s survival, finding food and water, you think about safety.”
Family Law Section
Although she admits a personal bias, Family Law Section Chair Amy Hamlin makes a strong argument that COVID-19 has impacted her section the most.
“Every single person in the state is part of a family in some shape or form,” she said. “We have really tried hard to pivot, to change and adapt, to help our members and the clients they serve get through this.”
Hamlin says social distancing mandates have kept the section’s 4,000 members scrambling to keep up with administrative orders and guidelines that vary from circuit to circuit and sometimes within circuits.
“We’re getting a lot of questions regarding parenting plans, how do we time share during COVID-19?” she said. “That was a huge question everyone around the state was having.”
Stimulus payments pose another dilemma for family lawyers, she said.
“Maybe the account for their 2018 return was closed, so then it’s going to be mail, what address does it get mailed to?” she asked. “Or if it was deposited into an account that was joint in the 2018 tax return, it’s no longer joint, how does the other person get their money, are they entitled to get any money?”
The section has tried to focus on helping members and their clients deal with such things as working from home while schools are closed.
“To that end, we have put together pretty quickly a bunch of Facebook live posts on a wide range of topics, how to work from home, how to use Zoom, how to take care of yourself and your clients,” Hamlin said. “We have so many clients and lawyers with special needs kids, how to work from home and meet those needs.”
Labor and Employment Law Section
Labor and Employment Law Section Chair David Adams said the section quickly posted two webinars to help its approximately 2,000 members navigate the Families First Coronavirus Response Act, and other federal relief that followed.
“I don’t need to tell you this, but these stimulus bills were sausage making at their very best,” he said. “They were quickly put together and the Original Family First Coronavirus Act bill was 888 pages.”
Adams said section Secretary Scott Atwood, Legal Education Director Sacha Dyson, and immediate past Chair Cathleen Scott deserve much of the credit for producing the material.
Section members, and their employer clients, had to decide such thorny questions such as how to accurately award paid time off, Adams said.
“These laws were very specific about whether employers could force their workers to use PTO, or not force them to use PTO, and we’re trying to get the word out on that,” he said.
While dealing with his section responsibilities, Adams also submitted stimulus applications for his 10-lawyer firm in Southwest Florida. The application was successful, Adams said.
“We’re happy to say that we haven’t let anyone go,” he said. “But it’s a challenge to turn all this stuff around and make it work.”
Adams belongs to a local group of business executives that meets regularly, and the outlook for the near future isn’t encouraging.
“We have a small group and we get together once a month, and we have bankers and lawyers and insurance people and brokers, and the consensus from the group is maybe 20% to 25% of businesses are going to fail, it’s kind of scary.”
Criminal Law Section
Criminal Law Section Chair Jennifer Zedalis said COVID-19 has slowed the wheels of justice, and that’s having a big impact on her members.
“Criminal law is fast moving, because you’ve got the issue of clients who are incarcerated, or at risk of being incarcerated, and at risk of losing their liberty and their livelihood,” she said.
COVID-19 has also touched the very foundations of criminal law, raising new questions about balancing the need to protect society and the rights of the accused at a time when jailing a suspect before trial, or sentencing a non-violent offender to prison, could be a death sentence.
“If you’re serving a prison term because of a non-violent, third-degree felony, if you have asthma, what if you have a compromised immune system, do you deserve the death penalty?” Zedalis asked. “I don’t think so.”
Some section members are concerned about appearing in court and risking infection with a deadly virus, Zedalis said.
“One of my colleagues, he and his wife are expecting a child, and he wants to be really careful, so he didn’t want to take cases in a county where you would have to appear live,” she said.
While the section is working hard to continue CLE programs and other member service, COVID-19 has taken a toll on one of the section’s most cherished traditions, Zedalis said.
“I think this is the first year ever I’ve had to cancel the prosecutor-public defender trial training program, which I believe is going into its 43rd year,” she said.