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June 01, 2021 Practice Management

Challenging COVID-19 restrictions can boost business, but beware of political consequences

By John Roemer
Public mandated restrictions to stop or slow the transmission of COVID-19 have become a divisive political issue.

Public mandated restrictions to stop or slow the transmission of COVID-19 have become a divisive political issue.

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Lanny Davis is as savvy a Washington, D.C., operative as there is. The longtime lawyer and lobbyist has seen it all on the way to becoming a go-to guru of sorts for a wide range of clients, countries and politicians from all sides, including most recently serving as defense counsel for former Trump attorney Michael Cohen.

He’s perhaps primarily known as a Democrat due to his extensive ties to the Clinton family, including several years as special counsel to President Bill Clinton.

But even Davis was stunned to see how political COVID-19 had become.

In March, he watched Sen. Rand Paul, R-Ky., clash with Dr. Anthony Fauci during a COVID-19 hearing over post-vaccination mask-wearing. Then Davis let his displeasure with anti-maskers show in a radio interview.

“I referred to the potential civil liability for negligence of a mask-free person wearing a MAGA button who infects someone,” Davis says. “The question isn’t about individual rights; it’s whether you have the right to infect someone else, and the answer is no.” Some listeners reacted with alarming abusive phone calls, Davis says, alerting him to just how divisive the pandemic has become. Reluctant to further fan the flames, he won’t say exactly how unpleasant the threats became. But now, for the first time, he screens callers.

“Lawyers get blamed for the clients they take,” says Davis, the co-founder of the crisis management and PR agency Trident DMG. He has crisis management clients with COVID-19 issues, though he declines to be specific. He spoke of how pandemic concerns are inseparable from other hot buttons that currently animate simmering antagonisms, including blowback against members of the legal profession over their advocacy for Republican causes.

Davis calls the criticism misguided. “I’m on the side of Don McGahn,” he says, referring to the Jones Day partner who took flak for serving as Trump’s White House counsel until October 2018. “He’s a great lawyer from a great firm. He represents the best of what it takes to be a lawyer. Everybody who needs a defense deserves a defense. You’re seeing now the peril of practicing in a polarized world. Not since Joe McCarthy have we seen lawyers so victimized by attacks.”

Public mandated restrictions to stop or slow the transmission of the disease, including mask mandates, limitations on public gatherings and business closures, have become a divisive political issue. Several Republican and right-leaning lawyers have filed lawsuits challenging these public health measures, leading to some successes in court along with both encouragement and negativity from the public.

According to Hunton Andrews Kurth’s COVID-19 Complaint Tracker, over 10,000 suits had been filed as of May 6, 2021, most of them over labor and employment, insurance and civil rights issues.

For instance, Las Vegas lawyer Marc Randazza challenged Massachusetts Gov. Charles Baker (a Republican) in September in U.S. District Court for the District of Massachusetts over an order that video game arcades close. The following week, they were allowed to reopen. Randazza then sued again when his arcade client was turned down for COVID-19 aid through a private-public agency called the Massachusetts Growth Capital Corp. on the grounds that it was ineligible because it was in litigation with the commonwealth. That case also led to a reversal of the agency’s position, spelled out in October in a Stipulation of Dismissal between the parties.

Randazza claims the litigation was generally well-received, though there were critics. “You’re going to kill people,” he quotes one caller. “But the idea of small businesses pushing back was popular with 95 percent of the public, and the lawsuit was positive for my practice.”

The American Bar Association’s Model Rules of Professional Conduct state: “A lawyer’s representation of a client…does not constitute an endorsement of the client’s political, economic, social or moral views or activities.” However, legal ethicist Michele DeStefano of the University of Miami adds that, in the real world, “while lawyers take unpopular cases all the time, there can be repercussions.” “Every lawyer’s job is in part to manage the court of public opinion,” she says. “Let the client know that such suits may impact not only the firm and the lawyer, but the client themselves.”

DeStefano said she hasn’t seen much evidence that firms have suffered from taking on COVID cases. “But firms do have to think about their social footprint,” she states.

For instance, in Minnesota, Erick Kaardal of Mohrman, Kaardal & Erickson has filed scores of suits over the years opposing what he calls government overreach, including one in August contending that the governor’s face mask order conflicts with a state statute that bars people from concealing their identity in public. “There was blowback because masks had been politicized under Trump,” Kaardal says. “I drew a lot of public fire. People are pro-mask.” He describes hostile calls and emails. “Litigation is supposed to channel this stuff into a civilized outlet for the emotions.”

He also sued on behalf of small businesses challenging executive orders over closures of bars and restaurants. Alongside the Thomas More Society, Kaardal filed another suit in August in U.S. District Court complaining that Gov. Tim Walz’s executive order limiting the size of religious gatherings “criminalizes conduct of church attendees.” That restriction was lifted in March 2021, Kaardal says, and he claimed credit.

“We have the winds in our sails,” Kaardal says, adding that he decided to make a career out of suing the government 20 years ago. “In my practice, I’m expected to represent people when the government exceeds its authority.”

However, Kaardal’s political activities have also resulted in negative publicity. A suit in U.S. District Court for the District of Columbia to prevent Congress from declaring Joe Biden president—which he withdrew one day after the Jan. 6 siege on the U.S. Capitol—drew the wrath of a federal judge who said the complaint “rests on a fundamental and obvious misreading of the Constitution” and “would be risible were its target not so grave: the undermining of a democratic election for president of the United States.” The judge ordered Kaardal to show cause why he should not be referred for discipline. Kaardal insisted his suit was not frivolous.

Harmeet Dhillon, a former California state Republican official who has her own law firm, Dhillon Law Group, has made her challenges to COVID-19 restrictions part of her marketing strategy. Her website has a long page describing her COVID-related advocacy. For instance, she has sued Gov. Gavin Newsom, a Democrat, over executive orders on church attendance, shelter-in-place, the right to assemble and the closure of “nonessential” businesses. In February 2021, she won injunctive relief for religious institution clients from the U.S. Supreme Court.

“Since I am an outspoken activist and civil rights lawyer in our beleaguered GOP in California, we started getting inquiries about civil rights issues,” she says. “The most urgent at first were from people of faith unable to visit their houses of worship, and that included my Sikh faith. How do you do a baptism by video? Communion?”

Despite some pushback, she claims the COVID-19 cases have been an overall success and that her firm has probably landed a few corporate clients due to the publicity surrounding the various lawsuits. “I never got the kind of personal attacks, the death threats and hatred, that I get for supporting President Trump and representing Republican clients in court, or for my litigation on behalf of Sikh civil rights plaintiffs,” she says. “It was very lonely at first, but after those Supreme Court wins, I feel vindicated now.”