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July 30, 2020

“Tsunami” of legal issues in wake of COVID-19

As the COVID-19 pandemic rages through the United States, a “tsunami” of legal and economic issues is descending on the legal profession, justice system and American public – a crisis that will severely challenge this nation’s promise of justice for all, predicted a panel of experts at the American Bar Association 2020 Virtual Annual Meeting.

The CLE Showcase program, entitled “COVID-19: Legal Issues, Responses and Practice Going Forward,” examined how lawyers and others are dealing with the overwhelming legal demands inflicted by the pandemic – from courts struggling to operate remotely, individuals facing mounting legal problems, lawyers working at home, and the road ahead for the legal profession and justice system. The program was sponsored by the ABA Coordinating Group on Practice Forward and the ABA Task Force on Legal Needs Arising Out of the 2020 Pandemic.

James L. Sandman, president emeritus of the Legal Services Corp. and chair of the pandemic task force, opened the discussion with a review of the work of the task force, created in March. It includes experts from across the legal and social justice spectrum, and is working to identify the legal needs arising from the pandemic, make recommendations to address those needs, and help mobilize volunteer lawyers and legal professionals to assist people who need help.

Sandman described the group’s new website, launched early April, as a “central source for resources, connections, best practices and information” on the legal issues surrounding the pandemic crisis.

He also reviewed a task force survey conducted in May of more than 450 representatives of ABA entities and task force members to identify legal needs arising from the pandemic as well as determine whether there has been, and will be, an increase in demand for legal services.

The survey identified two primary substantial legal needs – unemployment benefits claims (19% of respondents) and housing-related issues, particularly evictions and landlord-tenant issues (17% of respondents). About 56% of respondents said they had already seen an increase in demand for legal services. The vast majority (91%) said they anticipated additional legal needs arising from the pandemic in the future.

“I think it is fair to say that the pandemic has really created what I would call a dizzying array of legal issues,” particularly for people of color and disadvantaged communities, said panelist Jo-Ann Wallace, president and CEO of the National Legal Aid and Defender Association and a liaison to the pandemic task force. In one stunning example, she said that up to an estimated 23 million people might face the prospect of eviction – out of a total population of about 110 million renters across the country.

She also pointed to the virus’ impact on attorneys and their representation of clients. “If you are a defense attorney and you are terrified, for legitimate reasons, about your health and safety, does that create a conflict of interest in terms of your representation of clients?”

Turning to the courts’ response, former Court of Appeals Justice Elizabeth Lang Miers - a Locke Lord partner, ABA Judicial Division chair and member of the pandemic task force – said the COVID-19 crisis only adds to the justice system’s considerable challenges, starting with videoconferencing.

“Like the rest of us, all of the courts had to learn to operate with Zoom, Webex, BlueJeans – any  number of platforms – some of which were compatible with court systems and some of which were not,“ she said.

Parallel challenges are the logistics and financial demands of planning and preparing to go back to in-person hearings and trials as the pandemic drags on, she said. That includes safely getting thousands of people in and out of court buildings every day, arranging social distancing in courtrooms, sanitizing courtrooms in between proceedings, getting clients in custody safely brought into courtrooms and the singular demands of examining mask-wearing jurors and witnesses. “There are so many issues the courts have to consider,” she said.

Panelist Laura Farber, a Hahn & Hahn partner and co-chair of the ABA Coordinating Group on Practice Forward, described the work of the coordinating group and announced the launch of its website, the first phase of the group’s work. The group’s goal is to support and advance the practice of law and the judicial system amid the potential long-term changes due to COVID-19.

“We want to have the resources and the tools that we can get by harnessing what the ABA does best, and that is providing guidance and leadership to assist our members now and going forward,” Farber said. Thus far, the coordinating group has surveyed all ABA entities to determine what they are doing now, what they have in the pipeline, as well as what opportunities and challenges they see. The group has identified three large areas: professional development, law practice management and the practice of law.

 “One thing we’re hearing across the board is we’re never going to go back to the way it was,” said Farber. “It’s going to change and, in ways, this experience – this pandemic – we’re all going through is incentivizing those changes in a much greater fashion that anyone had anticipated.”