The coronavirus pandemic has upended the legal industry and it is the challenge of lawyers “to be ready for the questions from their clients” as the world tries to adjust and get through the crisis, according to law professor James O’Reilly from the Division of Public Health at the University of Cincinnati College of Medicine.
O’Reilly, who is a former chair of the ABA Section of Administrative Law & Regulatory Practice, was the featured speaker for the one-hour webinar, “How Lawyers Can Guide Clients Through Questions on Coronavirus Concerns,” presented by the American Bar Association and ABACLE in March.
The legal industry has had to scramble to educate itself quickly about the virus, with many firms setting up coronavirus task force units as clients attempt to determine their needs and clamor for guidance, O’Reilly said. He suggested that lawyers prepare themselves by understanding COVID-19 — what it is, how it spreads, how long it takes to manifest from time of exposure — as well as the role of social isolation in prevention and recommended CDC personal hygiene procedures. Lawyers also need to have knowledge about private insurance and Medicare/Medicaid coverage.
He noted that clients who are in quarantine, due to exposure and potentially spreading the coronavirus, might inquire about suing to be released from isolation. Case law, O’Reilly said, has sided with medical protection of the community. “We as lawyers can say to a client that, yes we are concerned, but no we are not going to go to court to try to win a release from isolation because it is not something that can be readily remedied by a court order,” he explained.
Another scenario is that infected clients might want to sue the source of their infection, O’Reilly said. Anybody can file a lawsuit, he said, but proving the case is difficult. He offered a checklist of questions:
- Can you prove who was the individual “carrier” of the virus?
- Can you find an expert virologist to exclude alternate causes of transmission?
- Can you demonstrate illness was predicted/avoidable?
- Would a civil jury find the “carrier” liable for negligence?
- Could a monetary damages award be collected from this person?
- Did the medical provider breach the care standard (malpractice)?
- Can a transporter (airlines, cruise lines) be liable for not using or delivering needed safety equipment to protect passengers?
“These are all questions you need to consider when thinking about litigation,’’ O’Reilly said.
Even trying to force an employer to pay sick leave for an infected client could be difficult. O’Reilly said a union contract could have sick leave terms that limit outcomes, and such a claim in most situations would not be considered workers’ compensation or a “disability” issue under Equal Employment Opportunity Commission precedents.
He offered seven recommendations for lawyers:
- Express sympathy. The majority who get mild symptoms will recover soon.
- As a solo attorney, do not accept a case on contingency. “A lawsuit will be too difficult to prove, and your evidence collection process will be so heavily driven by expert witnesses that you will be paying a large amount of money up front and not get a very certain outcome from the jury.”
- Offer to negotiate hospital charges as a client service.
- Ask a nonprofit hospital to write off bills for a poor patient.
- Consider assisting a client already strapped by medical bills work with other organizations to settle the bills.
- Steer clients facing possible bankruptcy to a financial adviser to get expert advice.
- Talk to the family of a critically ill client to create advance directives in case the individual does not survive.
“These are merely recommendations and not purely legal solutions, but they are things that you should think about as counsel,’’ O’Reilly said.
“How Lawyers Can Guide Clients Through Questions on Coronavirus Concerns” is available on demand for free for ABA members. For more free COVID-related webinars, go here.