Author: TSA Press

As the COVID-19 pandemic has forced many attorneys and their staffs to work from home for the first time, the Pennsylvania Bar Association has issued an ethics opinion intended to provide guidance now and into the future on working from home and other remote locations.

The opinion, by the bar’s Legal Ethics & Professional Responsibility Committee, also addresses the duty of technological competence and its implications for attorneys and staff when working remotely.

Full text: PBA Formal Opinion 2020-300 Ethical Considerations for Attorneys Working Remotely.

When Pennsylvania Gov. Tom Wolf ordered the closure of all non-essential businesses, including law firms, many attorneys were not prepared to work remotely, and many questions arose concerning their ethical obligations, the opinion says.

The overarching ethical responsibility when working remotely, the opinion says, is that attorneys and staff “must consider the security and confidentiality of their client data, including the need to protect computer systems and physical files, and to ensure that telephone and other conversations and communications remain privileged.”

The opinion affirms prior Pennsylvania opinions holding that it is ethical for attorneys to allow client confidential material to be stored in the cloud and that an attorney may maintain a virtual law office in Pennsylvania, provided appropriate safeguards are taken.

The opinion also adopts Formal Opinion 477R issued in 2017 by the American Bar Association holding that a lawyer may transmit client information over the internet provided the lawyer takes reasonable efforts to prevent inadvertent or unauthorized access, including, when appropriate, the use of email encryption.

With regard to the duty of technological competence, the opinion says that it requires attorneys to understand the risks and benefits of technology as it relates to the specifics of their practice, such as engaging in electronic discovery.

But the duty also goes further than that, the opinion says.

“This also requires attorneys to understand the general risks and benefits of technology, including the electronic transmission of confidential and sensitive data, and cybersecurity, and to take reasonable precautions to comply with this duty.”

If attorneys lack the requisite knowledge and skill to implement technological safeguards, then they should consult with staff or other entities capable of providing the appropriate guidance.

At a minimum, the opinion says, when working from home or remotely, attorneys and their staff have an ethical obligation to take reasonable precautions to assure that:

• All communications, including telephone calls, text messages, email, and video conferencing, are conducted in a manner that minimizes the risk of inadvertent disclosure of confidential information.
• Information transmitted through the internet is done in a manner that ensures the confidentiality of client communications and other sensitive data.
• Remote workspaces are designed to prevent the disclosure of confidential information in both paper and electronic form.
• Proper procedures are used to secure and backup confidential data stored on electronic devices and in the cloud.
• Remotely working staff are educated about and have the resources to make their work compliant with the Rules of Professional Conduct.
• Appropriate forms of data security are used.

The opinion discusses some of the unique issues that working from home presents. For example, it cautions against speaking with clients when smart devices such as Amazon’s Alexa and Google’s voice assistants are present, or even when others in your home can overhear you.

Among the opinion’s recommendations for ensuring client confidentiality:

• Avoid using public Wi-Fi hotspots.
• Use a virtual private network.
• Use two-factor or multi-factor authentication.
• Use strong passwords to protect data and devices.
• Ensure that video conferences are secure.
• Backup data stored remotely.

Notably, the opinion also urges lawyers to be cognizant of their obligation to act with civility and to treat the courts and their adversaries with courtesy and respect.

“[W]orking from home has become the new normal, forcing law offices to transform themselves into a remote workforce overnight,” the opinion concludes. “As a result, attorneys must be particularly cognizant of how they and their staff work remotely, how they access data, and how they prevent computer viruses and other cybersecurity risks.”

Billionaire Treasury Secretary Steven Mnuchin feels your pain, America. He’s one with the common man. The poor son of a partner at Goldman Sachs who scrimped and saved and worked his way up to becoming a partner at Goldman Sachs, Mnuchin knows what it’s like to fall on hard times.

Well, not personally, of course. But he did get a front seat to the show from his perch as CEO of OneWest as the company foreclosed on thousands of homeowners. And it was all totally legal, dammit … well, mostly.

Anyway, the point is, Mnuchin knows that times are tough right now, so he and Donald Trump are doing everything they can do help Real Americans get through it.

“There’ll be these- these checks in the mail or direct deposit. It’s really bridge liquidity for people as they go through these difficult times,” Mnuchin told CBS’s Margaret Brennan, describing the checks for a whopping $1,200 dollars that started going out this week, graced with the president’s echocardiogram cum signature. But in the memo line, because he can’t technically sign it himself.

“Bridge liquidity for about eight weeks?” asked a skeptical Brennan, no doubt wondering how $150 per week would provide “liquidity” for any American family struggling to pay rent and put food on the table.

But no, the Secretary clarified, he meant the checks to cover ten weeks.

“Well, I — I think the entire package provides economic relief overall for about 10 weeks,” Mnuchin explained, helpfully. “Hopefully we’ll kill this virus quicker. In the end, we won’t need it. But we — we have liquidity to put into the American economy to support American workers and American business.”

So that would be $120 per week, a sum which wouldn’t cover the lovely Mrs. Mnuchin’s Botox. But don’t worry because, “In the end, we won’t need it,” right?

You can watch their exchange here.

Whoops, terribly sorry, something wrong with the feed. Here it is!

Nope, that’s not it either. Darnit! Okay, here ya go.

So don’t say Uncle Steve and Uncle Donny never gave you anything. And don’t spend that massive windfall all in one place, kids!

Transcript: Steven Mnuchin on “Face the Nation,” March 29, 2020 [CBS]

Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.

The Biglaw cost-cutting measures brought on by COVID-19 is creeping up and up the Am Law rankings, proving big gross revenue is not enough to stem cash flow concerns. The latest firm to announce cuts is Reed Smith, who raked in $1,174,973,000 in 2018 gross revenue, making it 27th on the Am Law 100 ranking.

Today, firm global managing partner Sandy Thomas announced on an all-associate call that associate pay will be cut by 15 percent for May through September. They’re also cutting counsel salary by 10 percent. And they’d previously announced a voluntary leave program during the coronavirus crisis. (The firm also released an FAQ about the cuts, available on the next page.)

A firm spokesperson had this to say about the cuts:

As a result of the effects of the ongoing COVID-19 crisis, we have made a series of compensation adjustments in recent weeks that affect our lawyers and professional staff. After our initial decision last month to defer partner distributions across the firm, we also reduced base pay for counsel by 10 percent for the next three months and deferred decisions on merit increases and discretionary bonus payments for professional staff. We can now confirm that we are reducing associate pay by 15 percent for four months, beginning in May. Annual raises have already been awarded to associates, and their previously announced bonuses will be paid later this month.

According to tipsters, the cuts (particularly since they have associates taking a deeper cut than counsel) have gone over like a lead balloon:

Associates are MAD. Sandy Thomas came on and gave what came off as a very condescending pep talk – we know you’re working hard because we see your utilization and we know your clients need you. Many of us are left to wonder, ok, then why cut our pay so much (5% higher pay cut than counsel took).

Best of luck to those at Reed Smith as they deal with these austerity measures.

If your firm or organization is slashing salaries, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).

If you’d like to sign up for ATL’s Layoff Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the layoff alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each layoff, salary cut, or furlough announcement that we publish.

Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

I know it seems like ancient history, but it was only about a month ago in mid-March that many states closed all nonessential businesses, which resulted in the closure of most law offices. Right around that same time, many courts suspended most in-person proceedings. With the issuance of those declarations, the world as we knew it came to a screeching halt.

And then, against all odds, the legal profession rose to the occasion and began to rapidly adopt technology at rates never before seen. Governors and courts issued orders in rapid pace that affected — and modernized — the practice of law. Seemingly overnight, our profession was practicing law like it was 2030 by requiring lawyers to use readily available technologies to facilitate and streamline the swift administration of justice.

I’ve been tracking this phenomenon with a mixture of incredulity and amazement. For those who may have missed some of the announcements of these advancements, which often got lost in the midst of the daily barrage of ever-changing COVID-19 news, here are some of the most notable examples of technological innovation and adoption that have impacted the practice of law.

E-signatures

Courts across the country have begun to allow electronic signatures to be  used in place of “wet” signatures since the social distancing required by COVID-19 makes it difficult, if not impossible, to obtain in-person signatures. For example, the Massachusetts Supreme Judicial Court issued this temporary order on April 6 that permits attorneys “required to sign a document to be served on another party or filed with the court, … (to) electronically sign, unless the court specifically orders otherwise.” As a result, the need for e-signature tools, whether they’re standalone or built into law practice management software, has increased significantly in recent weeks.

Virtual notaries

The COVID-19 pandemic has understandably resulted in an increased interest in the preparation of documents that require notarization, such as wills and other documents like healthcare proxies. But the social distancing measures in effect obviously impact the ability to have the in-person notarization of the documents. That’s why most states have taken emergency action to enact remote notary rules that permit remote (or “virtual”) notarization via videoconferencing. You can find a full list of the states that permit remote notarization of documents here.

Digital documents

Another step forward for legal technology has been the acceptance of digital documents for court filings in lieu of paper documents. For years now, many courts have resisted the move toward all digital documents and have continued to require that paper documents be filed for many types of matters. COVID-19 is changing that since many courthouses and clerk’s offices have been forced to close their doors for the time being. As a result, many courts are revising their rules and allowing solely digital documents to be filed in matters that would have previously required paper document filings. For example, in this order from the United States Court of Appeals for the Second Circuit dated March 26, Chief Judge Robert A. Katzman suspended the court rules that required the filing of paper copies of briefs.

E-filing

Likewise, social distancing and the resulting shift to digital documents by many courts necessitates that e-filing be permitted in lieu of in-person filing of pleadings. Accordingly, many courts now permit e-filing in cases where it was not previously allowed. By way of example, the California Supreme Court issued this order on March 18 and subsequently posted the following notice to its e-filing website: “In light of the California Supreme Court’s [March 18, 2020] amendment of the ‘Supreme Court Rules Regarding Electronic Filing,’ rule 2, henceforth and until further notice, all documents (including briefs) must be filed electronically on the ‘TrueFiling’ platform, and paper copies should not be submitted …”

Videoconferencing (or teleconferencing)

Last, but not least, courts and legal professionals have embraced video conferencing en masse from the very start of the shelter-in-place requirements. Courts at all levels, from local courts to the highest court in the land, have begun to permit legal proceedings to move forward via video or teleconferencing. For example, on March 31, the Judicial Conference of the United States announced that it had “temporarily approved the use of video and teleconferencing for certain criminal proceedings and access via teleconferencing for civil proceedings during the COVID-19 national emergency.” And earlier this week, the United States Supreme Court made the announcement that it would “hear oral arguments by telephone conference on May 4, 5, 6, 11, 12 and 13 in a limited number of previously postponed cases.”

So, the times they are a-changin’ folks, and more rapidly than I ever expected. If you’re interested in more insight on the unprecedented rate of change and what it means for the legal profession, make sure to check out Above the Law columnist Bob Ambrogi’s latest LawNext Podcast, where Bob interviews Richard Susskind. Find out what Richard — a world-renowned expert, speaker, and author on the future of legal services — has to say about the whether the COVID-19 pandemic will facilitate a fundamental change in the adoption of technology by the legal profession and the delivery of legal services generally.

Nicole Black is a Rochester, New York attorney and Director of Business and Community Relations at MyCase, web-based law practice management software. She’s been blogging since 2005, has written a weekly column for the Daily Record since 2007, is the author of Cloud Computing for Lawyers, co-authors Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York. She’s easily distracted by the potential of bright and shiny tech gadgets, along with good food and wine. You can follow her on Twitter at @nikiblack and she can be reached at niki.black@mycase.com.

Pierce Bainbridge Beck Price & Hecht had some pretty lofty goals. The litigation boutique claimed to be “the fastest-growing law firm in the history of the world,” and boasted they were “creating SEAL Team Six of litigation.” But according to a report by Law360, the dream is over and the firm is shuttering its doors.

According to reports, COO and deputy general counsel Camille Varlack and CFO Kevin Cash told attorneys at the firm on Monday that the firm would begin winding down operations on Wednesday. Sources at the firm also reportedly were told they will not receive their next paycheck, scheduled for April 30th.

The firm has been steadily losing attorneys over the last six months — approximately 50 over that time frame. The firm also reportedly laid off ~10 attorneys on April 1st. As of Monday, the firm was left with about 20 attorneys. A current attorney at the firm told Law360 about the wind down:

“If you don’t have any clients and you’re not the senior attorney on any cases, you can just walk away,” one current attorney said of the wind down. “But if you are, this puts you in a very difficult position, particularly if you have court deadlines coming up.”

Leading up to the wind down, the firm also experienced a bunch of shake up at the top of the firm:

John Pierce took a leave of absence in March amid allegations he’d taken out a personal loan using the firm’s assets as collateral. In a statement given to The American Lawyer at the time, a firm spokesperson said a “preliminary investigation” had corroborated that he took out a personal loan, but Pierce himself has not publicly commented on the matter.

Pierce’s departure left attorney Tom Warren in charge, but earlier this month Warren and two named partners, Carolynn Beck and Maxim Price, also left the firm.

Plus David Hecht left the firm in March. So perhaps it isn’t a real surprise that the firm is closing its door.

Best of luck to the Pierce Bainbridge attorneys as they try to figure out the next step in their career, amid a global pandemic.

Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

First online notarization, then the legalization of surrogacy, now an expansion of the standby guardian law and authorization of video witnessing of estate planning documents. Governor Andrew Cuomo of  COVID-19-stricken New York is a gift not only to trusts and estates attorneys, but to all citizens.

Cuomo’s recent Executive Order No. 202.14 pertains in part to New York State healthcare workers exposed to COVID-19 who can now designate a standby guardian for their minor children. The New York Legal Assistance Group and Greenberg Traurig, LLP, who worked pro bono on the modification, helped to draft the expansion of the Surrogate’s Court Procedure Act (S.C.P.A.) § 1726.

Generally the statute allows an individual to appoint a standby guardian if the parent/guardian:

1. A) becomes incapacitated; (B) becomes debilitated and consents to the commencement of the standby guardian’s authority; (C) becomes subject to an administrative separation and consents to the commencement of the standby guardian’s authority as required pursuant to the provisions of subdivision seven of this section; or (D) dies prior to the commencement of a judicial proceeding to appoint a guardian of the person and/or property of an infant.

Executive Order 202.14 expands the statute to include a parent or legal guardian, custodian or primary caretaker “who works or volunteers in a health care facility or who reasonably believes that they may otherwise be exposed to COVID-19, may designate a standby guardian by means of a written designation.”

A standby guardian is appointed by a written statement executed by a serving guardian/parent or alternatively by court proceeding. Because courts are closed or operating on limited schedules, a standby guardian statement is important not only for the gravely ill, or debilitated, but those who are on the front lines, fighting COVID-19. At a minimum their inclusion in the statute  provides peace of mind that if something were to happen to them, their children will be cared for.

Generally, a last will and testament dictates the guardian choice for one’s minor children in the event a parent or parents die. The last will also nominates an individual to control the minor’s assets. If one dies, a last will is filed with the local probate court and the nominations for executor, trustee, and guardian are reviewed and then authorized by the court. A standby guardian document permits immediate control to pass to the standby guardian who has no powers until a triggering event happens. In cases of incapacitated, severely ill, or deported parents, this is important to execute.

Historically S.C.P.A. Section 1726 was created as a result of the AIDS crisis, in 1992. Recently, in 2018  it was extended to immigrants who were at risk of being separated from their children because of deportation or detainment. The statute’s reference to  “administrative separation” pertains to the latter.

Within the same executive order, Cuomo has allowed the video witnessing of estate documents including statutory gifts riders, last wills, and trusts. Video notarization had been addressed in a prior executive order, however, many estate planning documents require witnesses, not just notary acknowledgements. Many a law school class and bar exam question focus on the tenets of Estates Powers and Trust Law (E.P.T.L.) Section  3-2.1 and the requirements for the in-person witnessing of wills, While other states have allowed electronic wills, New York has not.

Cuomo’s executive order remains in effect until May 7, 2020, and it permits signing of these important documents, before videoed witnesses, in the safety of one’s own home. The famous saying “Desperate times call for desperate measures” might be rewritten in today’s scenario to suggest that New York’s interpretation is “Desperate times call for innovative measures.”

Cori A. Robinson is a solo practitioner having founded Cori A. Robinson PLLC, a New York and New Jersey law firm, in 2017. For more than a decade Cori has focused her law practice on trusts and estates and elder law including estate and Medicaid planning, probate and administration, estate litigation, and guardianships. She can be reached at cori@robinsonestatelaw.com.

Illegal money traders who used to flood the streets of Harare and Mutare are now working from home while Zimbabwe is under lockdown to curb the spread of coronavirus [File: Farai Matiashe/Al Jazeera]

Zimbabwe experiences multiple natural hazards, including cyclones, drought, floods, and heavy rains. Droughts affect rural and urban food security and water supplies on an annual basis, with increased reliance on food distributions during lean seasons.

Recurring floods during the rainy season damage roads and infrastructures, particularly in remote districts. Climate change is projected to continue affecting the country. According to World Bank research, by 2050, Zimbabwe will experience a significant reduction in rainfall, river flows, and groundwater drainage, with the highest impacts on southern Zimbabwe.

Cyclone Idai crossed into Zimbabwe as a Tropical Storm on 16 March 2019 causing severe flooding and landslides. The storm caused significant damage in Chimanimani and Chipinge provinces in the Manicaland district, rendering approximately 90% of the roads and bridges in the affected areas unusable. The Logistics Cluster was activated to fill the logistics gaps in the supply chain of relief items.

As the situation improved and the response transitioned from emergency to early recovery, the Logistics Cluster scaled down its operational activities and began working towards rolling out preparedness initiatives, designed to build on lessons learned and foster collaboration and communication within the humanitarian community in Zimbabwe. The transition to logistics preparedness was supported by the Department of Civil Protection, various UN and INGO/NGO actors, national societies and the private sector.

Food insecurity resulting from the combined effects of drought and the impact of Cyclone Idai is now also highlighting challenges with supply chain, further compounded by cash and fuel shortages associated with the current economic situation. Humanitarian partners have had to move from cash donations to in-kind food provision for the first time.

The Logistics Cluster Preparedness Project aims to enable a coordinated approach towards improving local supply chain resilience in Zimbabwe. A key output is the formation of a Zimbabwe National Logistics Sector led by Government, which brings stakeholders together before an emergency to identify potential solutions, draft a common action plan, and establish a national operational team environment.

Post published in: Agriculture