Law Firms Left Out Of 'Essential' Biz Orders Amid Pandemic

By Emma Cueto
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Law360 (March 23, 2020, 7:26 PM EDT) -- Under executive orders issued by the governors of New York and Michigan in response to the coronavirus pandemic, law firms in Michigan are not considered essential, while New York attorneys can use offices in the state only when supporting essential functions. 

Under the "New York State on PAUSE" executive order signed by Gov. Andrew M. Cuomo on Friday, all nonessential businesses were ordered to shut down all in-office functions no later than 8 p.m. Sunday. Although law firms and legal services are not included in the list of essential businesses, the New York State Bar Association later announced that it had received guidance that law firms can be considered essential when performing certain work.

That includes supporting essential functions such as health care providers, government entities and utilities, according to the NYSBA. It also includes representing people charged with a crime in court proceedings or providing representation in emergency family court hearings, as well as participating in proceedings concerning the imminent release of someone from detention and "proceedings to address emergency risks to health, safety, or welfare."

Apart from these narrow functions, law firms are subject to the same ban on in-office work as other nonessential businesses.

In Michigan, meanwhile, Gov. Gretchen Whitmer on Monday issued a similar order suspending "activities that are not necessary to sustain or protect life" and ordering all employees not designated as critical infrastructure workers to stay home. That designation applies to a range of employees, including those in the health care, law enforcement, food and agriculture, and finance industries, but does not mention law firms or legal services.

Although the order does not name courts in its list of essential government services, Michigan state courts have announced that they will continue handling essential functions such as search warrants, arraignments and child protective hearings. State courts have been ordered, however, to limit courtrooms to no more than 10 people, including staff, at any one time.

Michigan declared a state of emergency on March 10 after its first case of COVID-19 was confirmed. In total, the state has 1,300 confirmed cases as of Monday afternoon and 15 confirmed deaths.

The state of New York, meanwhile, has more than 20,800 confirmed COVID-19 cases, more than half of them in New York City. While the city works to increase the capacity of its health care system, including by converting the Jacob K. Javits Convention Center into a temporary hospital, the state has also shut down all nonessential businesses in order to slow down the spread of the disease.

In addition to other measures, New York Chief Judge Janet Marie DiFiore has announced that the courts will stay open for essential functions, but that all nonessential functions have been postponed. Essential functions include arraignments, bail hearings, sex offender matters, emergency family court matters and housing court matters challenging code violations or landlord lockouts.

The state courts have also asked that people showing symptoms of COVID-19 or who have been exposed to the coronavirus not enter courthouses in the state, and should instead call courthouses to ask how best to proceed. People who miss mandated appearances due to coronavirus exposure will not be penalized, according to the state court website.

The governor has also tolled the statute of limitations for both criminal and civil matters until April 19.

Different states have taken different approaches to the pandemic when it comes to courts and legal services. While New York and Michigan have partly or entirely excluded law firms and legal services from their list of essential operations, other states such as Illinois and Indiana have included professional services, including legal services, in the category.

Pennsylvania, meanwhile, initially prohibited attorneys from going to work in its original order, but later eased restrictions to allow attorneys to prepare for court hearings.

Correction: A previous version of this story misstated the number of cases in Michigan. This error has been corrected. 

--Editing by Alanna Weissman.

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