Lawyering in the era of social distancing
'To me, the biggest challenge is the uncertainty of everything'
So far, the unprecedented nature of the COVID-19 epidemic has been challenging — but not daunting — for Florida’s 100,000-plus legal community and the clients they’re sworn to protect.
Interviews with individual attorneys, Florida Bar leaders, and Bar staff, suggest that most lawyers are adjusting to the new reality by closing offices, working from home, and relying heavily on technology.
Florida Bar Ethics Counsel Elizabeth Tarbert said questions coming into the Bar’s Ethics Hotline have changed little since the epidemic forced Gov. Ron DeSantis to declare a state of emergency.
“Lawyers are obviously concerned for their clients, staff, and families, but the questions are normal questions about cases,” Tarbert said.
One of the biggest concerns, especially for sole and small-firm practitioners, who make up 60% of Bar membership, is an economic downturn and potentially looming recession.
With the U.S. economy ground to a halt and millions of businesses closed, unemployment is skyrocketing. Congress is about to shower the country with $2.2 trillion in stimulus, everything from airline bailouts and small-business incentives, to a $1,200 check for individual taxpayers.
“To me, the biggest challenge is the uncertainty of everything,” said Tampa attorney Paige Greenlee. “How long are we going to have to keep these safety measures in place, whether clients are going to have the financial wherewithal to continue paying attorneys, and what lasting impact this is going to have on our profession.”
Greenlee, a 13th Judicial Circuit representative on the Board of Governors, is a solo practitioner who occasionally relies on contract staff. She likes to maintain a brick-and-mortar office to sharpen the divide between her private and professional life.
But Greenlee closed her office last week as the epidemic raced across the country and she read a Pennsylvania emergency order that listed law offices as “non-essential.”
The week before she closed, Greenlee noticed a significant drop in phone calls and email traffic. That, and keeping a mostly paperless practice, made the transition to a home office relatively easy, Greenlee said.
“Luckily, I used cloud-based services — document management, time keeping/billing — and have a virtual receptionist service, Ruby Receptionists,” Greenlee said.
Less easy, Greenlee said, has been notifying clients about the epidemic’s impact on the courts.
Explaining it to Clients
In a series of administrative orders, the Supreme Court has canceled jury trials and most non-essential, in-person hearings, and stressed the need for using remote technology. Chief judges in each of Florida’s 20 judicial circuits have followed suit.
“It can be difficult explaining to clients that their business litigation civil matters are not essential under the administrative orders, and therefore, necessarily, have to be delayed right now,” Greenlee said. “I am hopeful that if this lasts for any length of time, we will see more civil hearings going forward by phone or with the use of other technology.”
Sarasota personal injury attorney Scott Westheimer feels fortunate that his 10-lawyer firm had been using advanced teleconferencing software and cloud-based technology for years, making the transition to remote work relatively seamless.
A 12th Circuit representative on the Board of Governors, Westheimer is now working from home with his child-psychologist wife, who is maintaining her practice via telemedicine. The couple is expecting their second child and work in shifts while the other parent cares for their toddler.
“These have definitely been interesting times,” Westheimer said.
Westheimer is most concerned about his wife’s pending delivery, and the fallout for his clients, who he says have been understanding, but continue to have pressing needs.
“Some of these cases are life-altering. They involve family law, personal injury; they impact their very livelihoods,” Westheimer said. “They want this to be wrapped up as quickly as possible.”
Another concern, Westheimer said, are the attorneys who are paid by the hour.
“A lot of clients and potential clients right now are putting litigation matters on the back burner, and without new clients coming in the door, and without being able to attend hearings and depositions and conduct mediations, a lot of our hourly attorneys are going to be in a catastrophic situation soon.”
The biggest silver lining, Westheimer said, is the speed with which senior members of his legal team are adjusting.
‘Everything is Virtual’
“We had attorneys that did not even have a personal computer at home, and now that everything is virtual, they’re attending partner meetings on Zoom and really embracing it.”
For Tampa family law associate Kaley Ogren, adapting has meant helping her firm close its office in a downtown tower, forwarding work calls to her cell phone, and learning to use Zoom — especially the mute function, so her five-year-old’s occasional meltdowns don’t interrupt important meetings.
“I hadn’t heard of Zoom before this,” she said. “I think the biggest challenge is just balancing family when you can’t really separate family from your normal work life.”
Ogren feels lucky that grandparents are helping pick up the childcare slack while schools are shuttered. But Ogren has had to do more legal work before and after business hours so she can tend to her daughter’s home schooling.
And Ogren has gained a new appreciation for ergonomic design. She was forced to bring office furniture home when she realized that her dining room chair was no friend to her bad back.
“I’m in my 30s, but I feel like I’m getting old,” she said. “It really hurt.”
Court constraints haven’t posed a major barrier for her clients, but it’s relatively early, Ogren cautions. Should the need arise, she’s confident that she could get a hearing for a protective order.
“That’s a safety issue, and that’s still available,” she said.
Some administrative orders are making life easier, Ogren said.
“We’ve modified our pleadings a little bit,” she said. “You don’t want people running out frantically trying to get things notarized, so signatures are fine for now, as far as initial pleadings go.”
The epidemic and the need for social distancing have somehow drawn her firm closer together, Ogren said, with colleagues holding daily check-in sessions on Zoom.
The emergency has even made opposing counsel more cooperative about rescheduling hearings, she said.
Brian Burgoon, an out-of-state Florida Bar member who also serves on the Board of Governors, said he made a relatively smooth transition to working from home in the middle of March. A solo practitioner, he did not have to accommodate support staff.
“Much of my contact with my clients is either over the phone or by email, so that has not changed,” Burgoon said.
But Burgoon also serves as an arbitrator, and he said those hearings have had to be postponed. Some of his colleagues predict that widespread business closures will result in “employment issues” and contract disputes.
“I expect to see litigation stem from those in the future,” Burgoon said.
Barbara Leach, an Orlando family law attorney, recently became of counsel with a small, Central Florida firm while she runs for public office.
Her group of a half-dozen lawyers and an administrative assistant gathered at the office on March 16 to plot their COVID-19 response plan.
“On that Monday, everyone met at the office, and we laid out the protocol for downloading the necessary phone app, so calls would be transferred, just as though we’re in the office, and then, identifying the protocols for using Zoom meetings,” she said. “It’s just kind of business as usual for everyone, just on a remote level for us.”
One new client requested an in-person consultation, but when he learned about the new protocols, he had no problem explaining his matter over the phone, Leach said.
Leach said she feels lucky to be practicing in the Ninth Judicial Circuit, home to Chief Judge Donald Meyers, Jr., who has stressed safety and innovation, and Circuit Judge Lisa Munyon, who chairs the Florida Courts Technology Commission.
“This is a chance for us to embrace technology, probably more because of necessity than desire,” Leach said. “But when the dust settles, I predict this technology pivot is going to make us more efficient and more effective.”
Leach has tried to show her clients the same flexibility they’ve shown her during the epidemic. This month, she switched her billing cycle from monthly to every 14 days, so clients are seeing smaller invoices.
“Are they going to pay a $750 bill to me, or are they going to pay a $250 electric bill? I don’t blame them for thinking that way,” she said. “I’m trying to make it more bite-sized manageable for them, but I still have a payroll and various other administrative costs associated with running the firm.”
Two years ago, Leach secured access to a line of credit, a money stream she has yet to tap. Her business credit card is paid off monthly, and her practice is debt-free. The only question remaining, Leach said, is how long it will take for the economy to recover.
“Between the money that I have in my operating account, and the access to the line of credit and the credit card, I’m confident that if we continue to be a lean shop, I probably have about six months that I can sustain it,” she said.