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Summary of Live Chat 12 from June 5

(The VBA thanks LPMD Chair Cliona Mary Robb for compiling this summary.)

 

The 12th COVID-19 Law Practice Live Chat at 10 a.m. June 5 featured these speakers and topics:

  • L. Steven Emmert (Sykes, Bourdon, Ahern & Levy, P.C.) on this week's orders regarding Virginia courts,
  • Samantha Sedivy (Reed Smith LLP) on Gov. Ralph Northam's announcement that most of Virginia will enter Phase II tomorrow and what the loosened restrictions are,
  • Jonathan Lazarow (Kaufman & Canoles, P.C.) with the latest updates on Payroll Protection Plan loans, and
  • Margaret Ogden, wellness coordinator at the Supreme Court of Virginia, on wellness in times of stress, such as we are experiencing now.

Follow up

Helpful details on Virginia Phase 2 are on the Forward Virginia website, linked on the VBA COVID-19 resources page under Virginia Action.

Lawyers Wellness challenge, June 18-28, co-sponsored by the VBA Young Lawyers Division and Public Service Committee, among other groups. Sign up to receive notifications about the event by Expressing Your Interest on the event webpage.

 

This week’s orders regarding Virginia courts (L. Steven Emmert with Sykes, Bourdon, Ahern & Levy, P.C. in Virginia Beach)

In the last four days we’ve had three orders and one directive from the governor.

Supreme Court of Virginia Orders

On June 1 the court issued its fourth order, actually it’s the eighth if you count the amendments to previous orders, that made significant changes.

  • Discovery. Restarted the clock for discovery deadlines, which must be answered by June 8 if they have been pending. If a case has been set for a jury trial, those are still stayed indefinitely. But you still have to answer the discovery.
  • Non-jury trials. This is a huge change. All courts may proceed with non-jury cases, including trials, if the court finds it safe to do so.
    • In the past, the court basically said you may go forward via telephone.
    • Unanimous consent is not required.
    • As of Monday, you can schedule a hearing or a bench trial, even over objections from the other side as long as you can convince the judge that it's safe to do so.
    • If the opposing party does not support having an in-person bench trial, you would then have to convince the judge that the trial may be held safely
    • This new order essentially means that there is no automatic right of veto like the opposing party had in the past. You basically have to convince the judge.
    • Kevin Martingale noted that he had in person trials in Appomattox and York Circuit Courts with no problems; masks could be removed if needed to communicate better.
  • Masks. These are required, though not for the judge or magistrate, and the court may permit their removal if you’re giving a speech. It does not apply to children under the age of 10 and those with health issues.
  • Jury trials. The moratorium on jury trials that has been in effect since the original declaration of emergency on March 16 continues though, as noted before, discovery goes on.  Courts do not have the discretion to convene a jury trial.
    • Long time before these resume? These could commence no earlier June 29, and Steve’s personal opinion is that it may be many moons before we get jury trials again because it involves citizens who have nothing to do with the case being summoned to first go to a jury assembly room, second go to a courtroom, third go into a jury box, and fourth go into jury deliberation room with a bunch of strangers. This is different than litigants entering the courtroom to try a case in which they're interested.
    • First alternative is ADR. You can mediate or arbitrate cases if you want a decision sooner than a jury trial would allow.
    • Second alternative is consenting bench trials. Many lawyers are pondering consenting bench trials.  You can probably get a trial date in June or July  because none are scheduled at this point.
    • Third alternative is summary jury trials. Va. Code § 8.01-576.1
      • Set up as non binding though parties may agree that binding
      • Over in less than one day
      • Not convene large venire, only seven at random, so can socially distance
      • In this case though you have to accept the seven people who come in and either side gets peremptory challenge.
      • That being said, Steve is confident that if the parties agreed, they could ask the trial judge to elect a different number three or five or something like that and say we will accept the judgment of these three or five members of the community to be selected at random
  • Judicial emergency extended to June 28. Statutory authority means the Virginia Supreme Court has to make these declarations 21 days at a time.
  • Electronic filings.
    • These are expressly permitted and encouraged for filing with the Virginia Supreme Court. Previous orders had authorized this for trial courts; this authorizes it in the Virginia Supreme Court.
    • The Court of Appeals has been accepting and encouraging filings for two months now. They don't want paper, and there are delays associated with paper filings.  For example, if you send something by paper to the Court of Appeals, the first day it's going to lay in a quarantine. Nobody's going to open it. The second day, one of the staff members will take it home and scan it, and possibly the third day somebody with decisional authority will take a look at it and do something. You can save yourself 48 hours if you simply file everything electronically.

Governor’s Directive closing Supreme Court Building

A directive from the governor closed the Supreme Court building all this week as part of the cleanup process from last Sunday's demonstrations in downtown Richmond. This affects all deadlines the previous court orders had stayed.

  • The only deadline in the appellate system was the filing of the petition for appeals
  • The effect of the closure of the building does not toll deadlines, but to give you more time if your deadline files on this on this time period. For example, a brief in opposition to an appeal, those deadlines have not been stayed before. The closure of the building this week means that those deadlines are postponed until the next day then the courts open, we hope by Monday.
  • This is not quite the same as a tolling provision.

Fourth Circuit Court of Appeals

The June 1 order says:

  • There is no access to the courthouse without authorization.
  • You can file a document in a specific room on the Main Street entrance, the clerk’s office, that kind of thing.
  • Those in the buildings, including employees, attorneys, couriers and so forth must wear a mask with exceptions for people under 10 years old and for those with health conditions.
  • Effective for three months through the end of August. The Fourth Circuit is not constrained by the 21-day statutory limit applicable to the Virginia Supreme Court.

Entering Phase II (for most of Virginia) by Samantha Sedivy (Reed Smith LLP)

As authorized by Executive Order 65 and Public Health Emergency Six on June 2, Phase II as of June 5 applies to all except Richmond and Northern Virginia, which were both signed by the governor on June 2.

Executive Order 61 was amended to allow Richmond and NoVa to remain in Phase I. There is no indication of when this will end; maybe next Tuesday’s press conference will address this.

How Phase II resembles Phase I

  • Guidelines applicable to law firms remain unchanged.
  • Virginians are still safer at home
  • Social distancing and teleworking are still strongly encouraged
  • Face coverings required in public anytime not around your own household
  • No changes for houses of worship (still 50% capacity)
  • Brick and mortar retail can still remain open at 50% capacity
  • No changes for farmers markets. May remain open with six feet of physical distancing between individuals
  • Certain indoor entertainment venues with shared facilities remain closed such as movie theaters, indoor music venues, and bowling alleys
  • No changes concerning child care facilities; these will likely be updated next week

How Phase II differs from Phase I

  • Public and private gatherings: limit of 10 increased to 50 people and guidelines have been issued for this.
  • Restaurants, breweries, and wineries
    • No longer restricted to takeout, delivery, and outdoor seating 50% capacity though this is strongly encouraged.
    • Now indoor and outdoor seating are allowed at 50% capacity with health restrictions in place
  • Gyms
    • no longer restricted to outdoor classes
    • open with no more than 30% capacity
    • patrons must be able to maintain 10 feet of physical distance between each other when possible.
  • Private campgrounds may now open for overnight stays for 14 days or less with 20 feet between campsites.
  • Entertainment and cultural venues
    • sports venues, outdoor music venues, museums, zoos, aquariums, botanical gardens may open to the public because these are characterized by there being no shared equipment
    • outdoor pools are no longer limited to exercise and lap swimming. Now deck seating and swimming instruction is OK as long as individuals keep 10 feet of physical distance between one another.

COVID-19 workplace safety standards

  • Virginia Department of Labor and Industry (DOLI) will be developing temporary emergency COVID-19 workplace safety standards
  • These must be approved by the Virginia Safety and Health Codes Board before they could be implemented
  • A notice for an emergency meeting of the Virginia Safety and Health Codes Board is expected to be released soon along with a briefing package and draft regulatory at the same time on the Virginia regulatory townhall website

Phase III

There is no new guidance on this. Earlier guidance was vague, saying that remaining at home would apply to vulnerable populations, the ban on social gatherings would be removed, and capacity limits on establishments would be removed. But all establishments will be encouraged to continue with heightened cleaning and disinfection; there could be some possible other measures, but those haven't been described as of yet.

 

Updates on Payroll Protection Plan loans, with Jonathan Lazarow (Kaufman & Canoles, P.C., in Norfolk)

The Senate on a 100-0 vote passed the Paycheck Protection Flexibility Act of 2020, which awaits the President’s signature.

  • No changes were made to the House bill as described in last Friday’s VBA weekly member forum call on COID 19 topics, which was designed to favors those who have already obtained PPP loans.
  • Coverage to spend extended from 8 weeks to 24 weeks or 12/31/2020 under certain circumstances.
  • Recognizes that re-hiring will be done a trickle, not by turning the water immediately back to full capacity. Be sure to keep good records on those you are not able to re-hire.
  • The 75/25 split for payroll and non payroll expenses is changed to a 60/40 split.
  • Small businesses may take advantage of both PPP loans and recent tax changes for deferring payroll taxes: this is not considered double dipping.
  • The period for paying back at 1% interest the portion of loans that are not forgiven is extended from 2 years to 5 years
  • More time to rehire employees.
  • Extends the period from when a business would apply for loan forgiveness from within six months to eight months of the last day of your covered period before starting to make interest and principal payments.
  • Personal property leases: it was not clarified whether the PPP covers these. It may be addressed in the revised application.
  • Next steps after the Act is signed by the president will be the SBA
    • revising the loan forgiveness application
    • issuing Interim Final Rule for borrowers
    • issuing Interim Final Rule for lenders
    • issuing FAQs

Wellness in times of stress, with Margaret Ogden, wellness coordinator at the Supreme Court of Virginia in Richmond

Lawyers Helping Lawyers is in its second year of its new guise as the Virginia Judges & Lawyers Assistance Program, shifting from a volunteer organization since the 1980s to a staff initiative of experts.

New hires include clinical social workers and an attorney with a master's in social work who do about two-thirds of the wellness work. The clinical experts are great at working with substance use and mental health issues. They provide direct services to attorneys, judges, lawyers, law students, and any legal professional and their families.

Staffing increased from 1.5 staff to 5 staff members in January. Their support-group participation has increased by 60%. The VSB Magazine will have a write up on the lawyers wellness initiative more broadly.

The other third of the wellness work is done by Margaret Ogden as the wellness coordinator. This involves creating general health and wellness initiatives that are more focused on policy institutions, workplaces, and proactive steps that we can take as a profession to guard against the occupational risk.

Margaret is an attorney by training who started her career in the Roanoke City Commonwealth's attorney's office and then did defense work at a small firm in the New River Valley. For the last four years she’s been up in Pittsburgh working as a staff attorney for the Pennsylvania Interbranch Commission for Gender, Racial and Ethnic Fairness, which is the policy commission implementing recommendations to address bias in our courts.

She approaches wellness from a policy and workplace standpoint: how can we take the onus on individual attorneys in crisis and support their well being on a larger scale.

Barbara Murphy, the new deputy clinical director, has taken a wonderful remote CLE, and helped Margaret prepare some of these clinical individual tests. And then Margaret has taken them and transposed them for institutions. Margaret got to contribute to the official section of the courts continuity of operations plans, which was really great to see the courts prioritize their employees' mental health as we come back to work.

Margaret has taken the lessons learned from courts reconstitution and shared them with the rest of the profession.

Tip #1: Focus on what you can control.

  • Attorneys are all addicts to certainty.
  • In this pandemic it has been very difficult for many of us to come to grips with uncertainty, as supported by data that for the first time, a third of Americans are suffering from anxiety or depression, and a lot of this comes from uncertainty that stems from what will happen to our future. And as lawyers we are experiencing this at a higher rate than the general public in the best of times. And so, this is probably only exacerbated right now.
  • Under Rules of Professional Conduct Rule 1.1 for competence, we just added comment seven to encompass how mental, emotional and physical well-being impacts an attorney’s ability to represent clients and to make responsible choices in the practice of law.
  • So if we focus on those things that we control, maintaining our mental, emotional and physical well-being, that's going to translate into our ability to represent clients.
  • Law firms specifically have a great deal of control over telework work, access to resources, not just saying hey here's the JLAP number, but making sure that your employees know that they can call and know that they will have the time off to go and seek these services.

Tip #2: Listening for connection for individuals

  • Isolation has a lot of health risks: this comes up in our occupational risk report, over and over again that the practice of law can be very isolating because of the adversarial nature, because of the way that we work.
  • At least when we're together we can kind of stick our heads in each other's offices and connect that way, or if we're solo or small firm, we cab connect in the back of the courtroom. That’s how you stay connected with your profession. Without those in-person connections we need to be more purposeful.
  • Zoom calls are a great way to stay connected and also calls of the type we're doing right now that the VBA has hosted on a regular basis. They're a wonderful first step but they require a little bit more intentionality.
  • Zoom can be really draining of our brains and we should recognize that kind of fatigue, because a video interaction is different from an in-person interaction. So just remembering when we're there to listen, to close out other tabs, and to focus on connections.
  • The problems of others take us out of the problems of ourselves, keeping the mindset of open curiosity and nonjudgment, which is very difficult for us. As attorneys we are always judging. We're supposed to be trying to turn that off. Connecting with others in a purposeful way is really important. How can we translate this to our institutions? Obviously this is going to look very different if you work at a large firm versus a small one.
  • What does listening mean for your institution? The ABA has put out a really excellent toolkit for developing well-being in organizations in a legal setting that has a few different assessment tools that can be used in the large firm to survey your employees about how they're feeling. These are the same kinds of screening tools that, for instance, the Census Bureau just used to screen Americans for depression and anxiety, and this is where we found these statistics about the increases. Now, your firm can do that too. Margaret cautioned that if you've never done that before, you may not have the credibility to do that on a large scale now. And what may be more important is the individual connections that you can make. Having nonworking lunches, having casual time set aside on your calls. For instance, Margaret’s education department in the office of the executive secretary is very small. They are five folks, and at the end of their WebEx meetings they all open their doors and let their children, spouses, dogs, whoever, pop in and say hi.
  • This has given Margaret a level of insight into co-workers that has deepened their connection, and her institution has supported that.
  • So think about what that's going to look like for you. And be sure to focus on listening to your employees.

Tip #3: Practice gratitude

  • This really strengthens our sense of agency. There have been a lot of studies about what separates a stressful event from a traumatic event. We usually think of stress or trauma as really distinct, but contemporary psychology really has focused to thinking about those on a spectrum. And what is stressful for one person may be traumatic for another depending on their individual background, but also their level of agency, as this event unfolds.
  • And if we can help people access agencies, through gratitude, we can move them from the trauma and back to the stress, and people actually perform very well under certain levels of stress. It's when it goes up too far that we have trauma. Practicing gratitude, focusing on what is going good in our lives, is a great way to instill agency back into ourselves. This can be writing, this can be talking to others and thanking them actively, and it can just be a reflection at the end of the day about what went well today.
  • How can institutions show employee appreciation? It can be something that is large scale. It can be something that is directed at specific employees.
  • Another thing Margaret would love to encourage you to do is to figure out ways to thank employees for taking care of themselves. We are great at rewarding high billables. We are great at for awarding victories. How often do we think employees for looking out for themselves? It's not very often, and because of that we don't incentivize that behavior, we incentivize burning the candle at both ends. And then we're shocked when people get burnt out. So think about ways to recognize employees who are taking care of themselves and to encourage others to take those steps.
  • It's not about telling people what to do with their lives. It's about making the healthy choice the easy choice as we transition back into a less work from home environment.

About VJLAP

  • JLAP is not limited to lawyers, and it can make referrals.
  • JLAP is available to anyone with a concern about judges, lawyers, law students, and legal professionals.
  • JLAP assists you in having the hard conversations.
  • Your spouse or paralegal might recognize it would help to have the conversation.
  • This is non disciplinary and can include, for instance, referring out to a marriage counselor.
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