Listening to Lawyers’ Voices
Member Survey Shows Common Concerns
With offices closed, courts operating under limited conditions and family life jumbled, Tennessee lawyers are working through the pandemic with varying degrees of success and struggle.
To help identify specific problems lawyers are facing and seek solutions to those challenges, the TBA surveyed the legal community to hear the voices of lawyers. The response was overwhelming.
Not only did lawyers point out the challenges they are facing with technology, evolving court rules and unforeseen parenting obligations, they also talked about the solutions they’ve discovered, the pride they feel in the legal community’s ability to adapt to difficult circumstances and still serve clients, and the hope they have that long-delayed projects for improving the justice system — such as statewide e-filing — might be moved ahead.
Challenges for Tennessee Attorneys
Some of the most commonly voiced challenges have to do with moving to a new physical space, utilizing new technology and adapting to a shifted schedule, including balancing home and work throughout the day. Others responded with concerns about quality of interactions with clients, as well as stress, isolation and uncertainty about future business and revenue.
SERVING CLIENTS EFFECTIVELY
• “It is difficult to have a meaningful consultation over the phone with potential clients. ... Basically, we’ve had no new business the past three weeks.”
“It’s also more difficult to create boundaries with clients, who are now contacting me 24/7 instead of limiting it to business hours.”
• “Clients are so understandably focused on illness, navigating social distancing, concern for family members in other states, pandemic-induced anxiety, stress from career disruption/loss of income, and escalating depression that work is drying up and payment of legal fees has stopped. ... Unfortunately, payment of legal fees is suddenly seen as a very low priority and both I and my practice will be in trouble within a very few weeks.”
• “Right now, I have not had any problems with working remotely, however from a personal standpoint I miss the daily interactions with other attorneys, clients and court personnel.”
• “The biggest challenge is explaining to clients that their matters are not “emergencies” as contemplated by the Tennessee Supreme Court’s COVID-19 order .... But the courts and court clerks have actually been great by waiving fax filing fees and allowing email filings.”
• “It’s also more difficult to create boundaries with clients, who are now contacting me 24/7 instead of limiting it to business hours.”
• “Confidentiality requirements can be a challenge with divorce when both your client and the spouse are safely staying home. Every phone call requires extra screening to make sure the client can’t be heard by the spouse.”
WORKING FROM HOME
Many survey respondents indicated the expected technology challenges: no printer or scanner, unreliable wi-fi, security and confidentiality concerns. Difficulty accessing mail and deliveries from the office. Also issues of shared office space.
• “I spend a lot of time learning new ways to accomplish familiar tasks in new ways. Every day I find myself solving old problems with filing pleadings and handling routine litigation tasks while honoring social distancing protocols. I also feel pretty overwhelmed with emails for some reason — more than ever before.”
“I am concerned about using new tech tools ... I am overwhelmed with technology.”
• “I am concerned about using new tech tools like Zoom and WebEx. These are new to me and look useful, but I am hearing judges and lawyers saying not to use them for privacy and confidentiality reasons. It is hard to know what to use. I am overwhelmed with technology. I just need to make sure I am using what is available to me in a way that helps me deliver legal services to my clients without jeopardizing their document and communication security.”
• “Biggest initial challenge was the “double whammy” of the tornado’s effect on infrastructure: internet connectivity was flaky for many days after the tornado and at the beginning of the stay-at-home period.”
• “I’m not working remotely. I am coming in and my staff has been coming in once a week to do tasks. There is not enough work for them to be here [and] I was never set up to work from home.”
• “The biggest challenge is getting and processing mail/packages while we are trying to work at home. We have someone stay at the office to receive packages and make a mail run. It works, but it does keep one person at the office.”
BALANCING HOME & WORK
• “It’s fine; merely had to adjust my hours. I normally work from home anyway, part-time. Now I have to share the home office with my husband, who works full-time, so I am working before and after his work day as opposed to my regular work times.”
• “Trying to balance a busy practice with supervising distance learning of school-aged children.”
LOSS OF REVENUE
• “Due to the lack of new clients and activity in the county, our firm is basically shutdown and four employees are with- out income.”
•“We have plenty of work but worry about whether our clients will be able to pay for our services at the end of the month when we are sending them the bill. We find ourselves restricting work to cases where we have a retainer in trust where possible.”
• “Education and training are not my concerns right now; earning income is my only concern at this time. Because of my areas of practice, I have essentially been laid off right now.”
• “I’m worried about what is next, when people try to go back to work, but cannot... I worry for my fellow bar members in rural areas who may have to ad- just their retainer and hourly agreements downward to get through the economic crunch when people will be needing their expertise, but maybe cannot afford the rate these professionals truly deserve.”
• “I am a sole proprietor. If this thing continues for four more months, I will probably be put out of business.”
Positive Feedback from Tennessee Attorneys
SUPPORT FROM TBA, COURTS, CLE COMMISSION, ETC.
“The courts have been amazing. I could not be more grateful for how they have been handling the situation. I worry about the prosecutors’ and public defenders’ exposure to the virus. I think, though, that they are very brave and that they can make their own judgment calls.”
“The courts are trying very hard to be responsive to both the public and the bar in this unprecedented situation and doing a very good job. The main issue is one not created by this issue, but the same one all along: each judicial district/judge is different in what they expect for different aspects of a case, so you always have to call and see how to proceed differently in this county versus that county.”
“The courts are hearing my motions using conference calls. It is awkward, but manageable.”
“I am pleased with all of our courts. Truly there has been ease of access to the judges, fellow attorneys, clients, clerks and so on.”
Honestly, the TBA, Courts, and CLE Commission have risen to the challenge. This is especially true with regard to the waiver of in-person CLE hours.
The [waiving of in-person CLE requirements] is an excellent idea in the current crisis. I feel I have plenty of options to complete content appropriate CLE at the present time.
I think the CLE options are helpful… The summaries I get as a TBA member are also very good. Perhaps a training could be offered regarding topics such as the Electronic Signatures Act, Remote Notary Act, etc.
The CLE commission made an awesome decision and letting us do all of our CLE online this year.
The change in CLE rules for this year, namely that CLEs may all be taken online, is fantastic. This was a well thought out alteration that should be applauded. Well done.
Permitting more than 8 hours of distance learning CLE credit for 2020 was/is greatly appreciated. The online CLEs discussing ways to communicate with clients and attorneys, such as video conferencing, etc., is helpful.
Making a point of maintaining good relationships with other attorneys and with judges means that it is a lot easier to work out necessary scheduling problems or discovery difficulties.”
“Bankruptcy [Court] has done a great job.”
RESILIENCE OF MANY AREAS OF LAW/PRACTICE TYPES
“We already have a remote structure, so this is just business as usual. The interruptions are on other side with people who are not used to the technology or who are trying to figure out their connectivity and file management.”
“The judges and clerks I routinely work with have been very accommodating. I’ve had no setbacks that that could be attributed to them. Practically speaking, we are trying to do Zoom hearings and trials. That’s very helpful for uncontested matters and motions that only require oral arguments, but as of now, impractical for contest- ed hearings until we work out some kinks.”
“I find the legal community to be much more accommodating and flexible than I originally expected.”
“From my observation, the system is working as well as can be expected under the circumstances. Protecting myself, my family and my coworkers is the top priority for me.”
Issues That Need to Be Addressed
INCONSISTENCIES AMONG COURTS
• “Some courts/judges are fully closed, others are fully open with judges both in person and by video.”
• “To the extent that our courts are open for non-essential business, each division has its own rules and procedures about what they will hear and how, so it’s a patchwork of availability depending on the courtroom.”
• “The seemingly daily changes to rules coming from different middle Tennessee courts and judges are hard to keep up with, even with regular publications. It would be helpful if all the courts adopted the same modifications to the extent possible.”
ABILITY TO CONTINUE WORKING WITH COURTS EVEN DURING CLOSURES
• “This is tough, but I really need the trial judges to be on the same page as the rest of the business world. Some judges are helpful in working with us to honor social distancing in our practice; however, others are not willing to participate in the problem solving. For example, I have no ability to require opposing counsel to participate in depositions set up remotely to honor social distancing. I can’t get help from some of the judges who say it is up to the lawyers. However, when one lawyer does not agree, we are stuck.”
• “Continued updates online as to court procedures which remains helpful to locate in one central location. Possibly contacting rural counties to upload their local COVID-19 rules would be helpful too.”
• “I’m concerned about getting proper notice about reset dates in time to both notify my clients and prepare for the hearings.”
• “While some judges and their staff have been exceptionally proactive about rescheduling matters continued due to the state of emergency, other courts have been slow to determine whether
a matter falls under the exceptions set forth in Tennessee Supreme Court’s orders or have been not communicated well about rescheduling cases."
In some cases, attorneys feel that there has been over communication, but possibly not coordinated or consistent:
• “The volume of orders is over- whelming. It seems like every judge, every division of every court publishes a new order every few days. I have a folder on my drive dedicated to trying to keep up with all the specific court orders and local rules impacting my practice in various courts.”
LONG-TERM ISSUES TO ADDRESS
• “Access to online court records is a critical need that existed even before this pandemic. This must be something that is addressed immediately. Court records should be easy and free (or very cheap) to access online by lawyers and the general public. Online filing is essential and can be done in all federal courts, so why not state courts?”
• “This should be a time where the state unifies some processes such as creating a statewide e-filing system for all courts, which is obviously a long-term project but would really fix a lot of issues with clerk’s offices into the future.”
• “There will be a TIDAL WAVE of legal needs when the courts re-open. Planning should begin now on how to deal with it. Immediate, increased funding for Tennessee’s legal aid programs and pro bono projects should be found NOW. A nightmare of need and injustice awaits us in the wake of the COVID crisis. Now is the time to act.”
• “The uncertainty of not knowing when this will be lifted, and therefore dealing with a court schedule that is ever fluid. Different courts have differing perspectives on when this will be over, so some trials are being reset for 30 days out while others are being reset for 4-6 months out. This is causing considerable hardship when it comes to juggling priorities, schedules and commitments.”