April 14, 2022 Column
OPENING STATEMENT: Our Changing Profession
Our profession is undergoing a sea change in how we practice, and it's being driven by more than just the COVID-19 pandemic.
Beth L. Kaufman
We are a country that has had many responses to the COVID-19 pandemic, from vaccination mandates in some places, to business as usual in others. The same has been true of our courts, both in the federal and state systems. Some have shut down and then reopened and then shut down again in some fashion; some have modified how trials take place; and most have encouraged the individual judges who work within their courthouses to develop their own rules and practices, to ensure that the judges and their staff are comfortable with the procedures that govern how they will interact in person, with each other, and with the public. From the perspective of lawyers who litigate, the variations in how we practice law have been just as far-reaching and pervasive. The result has been substantive and extensive changes in how we work our cases.
I remember reacting to the shutdown in New York in March 2020, when “nonessential” workers (a term that included lawyers) were told that they should work from home and not in their offices, by wondering aloud to my partners whether that meant that the pandemic would last 30 days or could it even mean 60 days? Of course, none of us had ever confronted anything like this before or could imagine it would last perhaps two years or beyond. The thought then was that whenever the pandemic ended, it would be a return to business as usual—the way we had always practiced law.
Changes Likely to Remain
The way we, as litigators, practice law has changed everywhere, although more in some state courts and federal districts than in others. While some of those changes are unlikely to become part of everyday practice anywhere, we all know that there are some changes that have become more embedded in our practice and are likely to remain. Prime among them are virtual events of all types: conferences on discovery disputes; discovery scheduling and pre-motion conferences, whether by phone or videoconference; virtual depositions; and virtual witness preparation. Our clients encourage us to proceed with them, and judges are beginning to codify them into their own rules and practices.
The hybrid workweek for lawyers, for paralegals, and even for staff seems to be taking hold more broadly. There are, of course, firms and legal departments that are returning full-time to the office and others that are going to all-remote work models. But we have learned that we can work under this hybrid model and perhaps be even more productive, while limiting commuting time and allowing for a logistically simpler life.
The Litigation Section has been a leader in addressing the changes in the ways we practice law. Continuing legal education (CLE) videoconferences throughout the pandemic have reached thousands of our members and non-members. We have taught those lawyers best practices for virtual court appearances of all types, drawing from the experience of our Section’s leaders and members and their clients and the judges before whom they have appeared. Although we have held five successful in-person programs since the end of September, we recognize that virtual CLE programming is here to stay. The Section has formed a Virtual Programming Board, led by Ruth Bahe-Jachna, Pierce Campbell, and Seth Row, to oversee the Section’s virtual content and ensure the best-quality programs are presented to our registrants. I am certain they will welcome the ideas and comments of our members.
Non-COVID–Related Changes
The changes in our profession are being driven by more than just the COVID-19 pandemic. The profession is undergoing a sea change in how we practice law—everything from deregulation of the legal profession; to non-lawyer ownership of law firms; to the establishment of law firm subsidiaries, employing non-lawyers to perform duties typically performed by lawyers; to litigation funding; to the use of artificial intelligence. Many of these changes raise professional responsibility concerns that our governing ethics rules do not yet clearly address.
The Section’s Task Force on the Changing Legal Profession has been charged with examining this myriad of issues. It began to lead us on that exploration at our Winter Leadership meeting in January and will again at the Section Annual Conference in May. The task force is under the able direction of Section leaders: the Hon. Nancy Atlas (ret.), Ron Breaux, and Allegra Lawrence-Hardy. I am certain they too will welcome the ideas and comments of our members.
As a Section, we are ever thoughtful and proactive about the changes our profession is facing. We are mindful of our place as the only national body that addresses the issues facing litigators on both sides of the v. We welcome your help in ensuring that our profession and we, as attorneys within it, embrace the changes we face and continue to thrive.