INSIGHT: The Practice of Law in the Time of Covid-19

Law is an incredibly interdependent enterprise. That is illustrated humorously in the old notion of a town with one lawyer whose practice was so meager that the lawyer almost starved, but a second lawyer moved to town, the two practices grew rapidly, and each ate like royalty.

So, we depend for our livelihood not only on our partners and associates, but on our adversaries, opposing counsel and the “other side.”

That is why my favorite Shakespeare quote about lawyers is not the well-known cry of Dick the Butcher suggesting widespread advocaticide, but rather is Tranio advising us to “do as adversaries do in law, / Strive mightily, but eat and drink as friends.” (Taming of the Shrew, Act I, scene 2, lines 248-52.) That line shows that lawyers can both contest and celebrate in ways that exhibit what is best in our profession.

Now Covid-19 has changed our world. Lawyers no longer contest positions in crowded courts or conference rooms, and restaurant curfews have them dining together only virtually through Zoom meetings. Indeed, law offices are shuttering, and their occupants shuddering, at the thought of actually covening because, to paraphrase the Butcher, “the first thing that may do is kill the lawyers.”

We Need to Stay Engaged With Adversaries

So we were catapulted into the future of work rather than phasing it over time. It is now an immediate reality being grasped and grappled with, not an abstract notion. So we circulate internally tips for working remotely to maintain a sense of team connectedness. But we need to go beyond that as well—we need to stay engaged with adversaries while working remotely.

And we need to live now the aspirations to civility that codes adopted in easier times still urge on us. That means both staying in contact with the other side, and looking out for them as well. There is no “us” or “our side” without a “them” or “their side.”

I am not the first person thinking this. In fact, a federal judge in Georgia ordered it:

Court document

The upheaval that has accompanied the pandemic raises many legal issues that clients need help addressing (and raises for them legitimate arguments concerning force majeure, frustration or impossibility). We, as lawyers, must see that such arguments have real factual foundations rather than being easy excuses for those simply fleeing a promise, settlement or other agreement.

There is a difference between what these circumstances really force on us and our clients and the cynical opportunism of never letting a good crisis go to waste. Clients, and law firms, may have to make many decisions concerning their businesses and their employees. Make the hard decisions for right reasons, and leave the rest for later.

Be an Example of Zealous Advocacy

Teach clients to know what zealous advocacy is by always fulfilling the obligations of the oath that we take to our clients to advocate, especially at this difficult time, for them. But also teach our clients what it is not by never doing anything that would undermine the oath that we take ourselves as lawyers. Using current circumstances to extract unwarranted concessions or results is far beneath us or our clients. So too is taking unneeded consideration—if a Covid-19 closure, or illness of family member, truly prevented or delayed a due response, so be it: give and take the courtesies basic decency require.

But if the real reason that something is not done comes from basic procrastination or inattention (or if some added demand stems from a harsher opportunism) unrelated to current events, make sure these dire times are never just convenient makeweight excuses.

In the novel Love in the Time Of Cholera, Gabriel Garcia-Marquez writes, “Nobody teaches life anything.” The great thing about fiction, of course, is that it can say the truest things. Though we teach life nothing, it teaches us everything, including the crash course recently on what matters most. In this crisis, our industry can exhibit the ideals that we should be most passionate about and known for, or it can recall for our society the worst images of our profession.

Be Optimistic and Do the Right Thing

It is an easy time for pessimism and slouching toward a comfortable baseness. Deny that tendency, as some have done to devote extended pro bono hours to Covid-19-related needs. Step away from the glumness of physical separation, as many have through client conference calls, Zoom coffee breaks and happy hours, and plain old-fashioned phone calls. Reject the negative traits that Dr. Larry Richard has found characterize the average “Lawyer Brain” in favor of the needed resilience he stresses. Keep a tough-minded optimism because:

• Life is tumultuous—an endless losing and regaining of balance, a continuous struggle, never an assured victory … Every important battle is fought and re-fought. We need to develop a resilient, indomitable morale that enables us to face those realities and still strive with every ounce of energy to prevail. You may wonder if such a struggle—endless and of uncertain outcome—isn’t more than humans can bear. But all of history suggests that the human spirit is well fitted to cope with just that kind of world.

[John Gardner, Personal Renewal]

Law in the time of Covid-19 is just that kind of world, and it needs resilient, optimistic lawyers to cope with it.

When many are risking so much in directly fighting the virus’ spread, calling on lawyers to do the right things is a simple ask, yet presents a hard task. But lawyers can learn resilience and, as Dr. Richard has also noted, resilient lawyers succeed. They are also lawyers who are inspired, think differently, use stress as an opportunity to connect with others, and give more than they take in relationships.

Clients are facing tough choices as they try to protect their employees’ physical health and their business’s economic well-being. Resilient lawyers strong enough to both answer clients and listen to the better angels of our nature are what the law needs in the time of Covid-19.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

James P. Flynn is a member of the firm in the Litigation and Employment, Labor & Workforce Management practices of Epstein Becker Green. He currently serves as the firm’s managing director. His practice focuses on civil litigation and corporate counseling, including trial and appellate work in the area of intellectual property, complex commercial matters, and employment law.