September 16, 2020

Access to Justice in Light of COVID-19: Benefits, Burdens and Lessons

Zhao (Ruby) Liu, Nicole McLemore, Kyla D. Wyatt, Alvin W. Thompson

INTRODUCTION

Delivering on the promises of the rule of law has been and will continue to be a great challenge during the COVID-19 pandemic and in its aftermath. As the world struggles to adapt to the evolving immediate consequences of this public health crisis, lawyers should be mindful of long-term consequences when providing legal advice and representation. This requires reflection on previous crises, a willingness to learn from the current pandemic, and use of acquired knowledge to navigate and prepare for comparable disruptions in the future. Business lawyers in particular should gain an understanding of how the pandemic affects their clients, the courts in which claims are brought by and against their clients, and the impact it has on lawyers in general.

 IMPACT ON MIDDLE MARKET AND SMALL BUSINESSES

The rapidly evolving COVID-19 pandemic disrupted the economy at a global level. Small businesses took the hardest hit. As businesses reopen to the public, social distancing restrictions and demand shifts are expected to shutter many more small businesses. Virtually every business is forced to confront a host of hard questions about how to survive and conduct business in the midst of the pandemic.

In response, the government, at different levels, implemented various relief programs, such as the Paycheck Protection Program (“PPP”), to address some of the hardships created by this unprecedented pandemic. The PPP did not accomplish its stated goal for many small businesses due to its complexity and accompanying uncertainty around the forgiveness process. Small businesses may not have the financial resources to learn and keep up with the quick-changing rules of the PPP program. As the pandemic continues to evolve, businesses face new business and legal challenges. Merely creating new relief programs for small businesses is not enough. Business owners need to understand what the programs offer and how to navigate and access such programs. Pro bono legal aid services remain a key solution to this ongoing problem.

IMPACT ON COURTS

Additionally, the pandemic poses significant challenges—and opportunities—for increasing access to justice. The federal and state judiciary systems have been forced to operate in unprecedented ways to maintain essential services. In many jurisdictions, physical access to the courts has been curtailed or suspended completely, making it difficult for individuals to seek legal assistance. Courts now routinely use telephonic and videoconferencing services to move dockets forward and will continue to adjust and implement new procedures and technology as the crisis evolves. There is still uncertainty, however, about whether such measures can (1) effectively substitute for in person proceedings long-term or (2) increase or decrease access to justice.

 IMPACT ON LAWYERS AND LAW FIRMS

Cases and deals are being delayed, causing law firms to make tough decisions. In hopes of withstanding the devastation brought by the pandemic, law firms have made pay cuts and layoffs, shortened summer programs, and delayed start dates for incoming associates. Despite the added stress these decisions cause, lawyers have been forced to step up and develop creative solutions for clients’ demands during these unprecedented times. Most of these solutions rely on innovative technology to meet the requirements of clients and their businesses. However, this creativity does not come without risk. Lawyers must be certain to maintain their ethical obligations, including maintaining confidentiality, professionalism, and competence. These obligations are increasingly difficult to meet given the new challenges that stay-at-home orders bring. Parents may be distracted by the responsibility to teach and care for their children, while roommates may struggle to maintain client confidentiality in their close living quarters. These new stressors add to the already demanding requirements of the legal profession, where mental illness is seen in large numbers. Lawyers should be mindful of these consequences and take steps to ensure both their physical and mental health.

LESSONS FROM THE PANDEMIC

There are lessons we can learn that are not new but do require more attention during times such as this pandemic.

  • It is necessary to make plans and decisions, but when events are rapidly evolving, it is helpful to think of plans as working hypotheses rather than as final decisions.
  • There is added value in flexible policies and procedures.
  • It is important to be aware of and take steps to mitigate cognitive bias.
  • Quantification is a double-edged sword, to be used carefully.
  • Clear and prompt communication makes a difference.
  • As you make changes, it is helpful to identify what intangible benefits you might be losing and how important they are (or are not) and decide whether you want to try to mitigate the loss.
  • Pro bono legal representation is a way to make a meaningful difference in someone’s life.

CONCLUSION

Maintaining an understanding of our clients, courts, and ourselves will help foster innovative ideas and practical solutions to clients’ evolving demands. It is important to be flexible and open to change, particularly during the COVID-19 pandemic when the world and its laws are changing every day. Although we have limited access to each other due to social distancing requirements, we must be cognizant of the new norm and ensure that we are doing our part to increase access to justice during this global health crisis.

Zhao (Ruby) Liu

Attorney, Rosner Law Group LLC

Zhao (Ruby) Liu is an attorney with the Rosner Law Group LLC in Wilmington, Delaware.  Ruby focuses her practice on corporate bankruptcy and business litigation. Ruby’s diverse practice includes representation of chapter 11 debtors, creditors’ committees, liquidating trustees, secured and unsecured creditors, officers and directors, debtor-in-possession lenders, intellectual property licensors, acquirers of assets and investors.  Ruby also assists companies and creditors in out-of-court work out and restructuring efforts. In addition, Ruby is fluent in mandarin Chinese and has a specialty practice with the firm frequently representing Chinese vendors, investment bankers, and other Chinese entities in connection with chapter 11 bankruptcies as well as business litigation in the state and federal courts in the state of Delaware. Ruby is a former Diversity Clerk and a current Business Fellow with the American Bar Association Business Law Section.

Nicole McLemore

Law Clerk

Nicole McLemore is a Law Clerk to the Honorable Mindy A. Mora.

Kyla D. Wyatt

Associate, Bryan Cave Leighton Paisner

Kyla Wyatt is an associate at Bryan Cave Leighton Paisner, where she practices commercial litigation involving a variety of subject matters.  Her clients include companies in the financial services, entertainment, and retail industries.  The majority of her practice includes defending against allegations of violations of federal and state consumer protection laws and various torts.  Ms. Wyatt also provides pro bono services to Al Otro Lado and Kids in Need of Defense to provide legal assistance in reunification of separated families at the border and to unaccompanied children.

Alvin W. Thompson

United States District Judge, District of Connecticut

Alvin W. Thompson serves as a United States District Judge for the District of Connecticut. He was appointed in October of 1994, after 16 years in private practice with Robinson & Cole, in Hartford, Connecticut.

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