ABA Says Gov't Should Declare Legal Workforce 'Essential'

By Dorothy Atkins
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Law360 (March 25, 2020, 9:42 PM EDT) -- The president of the American Bar Association called for the federal government to deem legal services "essential," so that lawyers are exempt from local shelter-in-place rules that prohibit employees from leaving their homes for work in order to prevent the spread of the coronavirus.

In a Tuesday letter to Cybersecurity and Infrastructure Security Agency Director Christopher Krebs, ABA President Judy P. Martinez argued that people need access to essential legal services during a national emergency such as the current one, which was sparked by the coronavirus pandemic.

"The American people and U.S. business community must have access to the legal services they need — when they need them most, in this time of crisis," the letter says.

Martinez said in the letter that lawyers ensure that laws remain strong, particularly in times like these when "fast-changing" orders, directives and laws are being issued by a variety of authorities across multiple jurisdictions.

"Lawyers can help Americans as they address unexpected challenges and solve problems surfacing in the wake of the spread of the coronavirus," the letter says.

As of Tuesday, governors in 17 states and multiple cities had issued orders requiring workers to stay at home working remotely in order to keep coronavirus infections low. Only individuals performing "essential services" supporting critical infrastructure sectors are exempt from those orders and allowed to continue operations.

But states have been defining what constitutes an essential service differently, according to the letter. While some states, like Indiana, California and Illinois, have incorporated legal services into the definition of an essential service, others haven't, the letter says.

Martinez told Krebs that if the federal government issues a nationwide rule, it should include legal services in the definition to clear up the confusion.

Martinez also noted that although some lawyers can work remotely, many others can't. For example, some states require attorneys to execute wills or health care directives in person, and even if it's not required, best practices may require that a lawyer watch their client sign documents in person to ensure legal compliance, the letter says.

Additionally, criminal defense attorneys often have to meet with their detained or incarcerated clients in person in order to provide confidential legal advice and to protect their clients' constitutional rights, the letter says.

Martinez pointed out that many courts don't have the technology to provide secure and confidential video access that may be needed when attorneys aren't allowed to meet in person with their clients or attend hearings.

"If these and other challenges are not overcome, adverse consequences may fall on individuals and families," the letter says.

The ABA isn't the only one urging for uniformity on what is considered an essential service. Attorneys representing government contractors told Law360 Tuesday that one of the biggest challenges they've faced over the past two weeks has been trying to decipher conflicting messages about whether their clients' businesses are considered essential.

Although none of the attorneys Law360 spoke to say their clients have been forced to close, the possibility of enforcement has been enough to prompt McCarter & English LLP partner Daniel J. Kelly to advise his clients to have employees carry letters with them while traveling to and from work.

The letters state the nature of the work that the employees are performing and describe why it is essential under the local rules, Kelly said. It also provides their counsel's contact information in case the workers are questioned by law enforcement, he said.

A CISA spokesperson said in a statement Thursday that the government developed a list of what is considered an essential business in coordination with federal agencies and the critical infrastructure community. The list serves as a guide to help state and local governments make decisions around reasonable accommodations for workers, the statement said.

"While this guidance is not a federal mandate, and final decisions remain at the state and local levels, we firmly believe it can serve as a baseline for a common national approach in prioritizing essential services and workers," the statement said.

A representative for the ABA didn't immediately respond Wednesday to requests for comment.

--Editing by Alanna Weissman.

Update: This story has been updated to include comment from CISA.

For a reprint of this article, please contact reprints@law360.com.

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