Dispatch From Day Five of "Social Distancing," Not That I'm Counting or Anything

First, I will caveat this with, dammit Jim, I’m a lawyer, not a doctor or an economist, so I’m not going to make any predictions or grand pronouncements, except, please be safe and careful and wash your hands (you can use this handy procrastination tool to make posters for your bathroom mirror). Take this seriously. We are in exceedingly uncharted territory.

But on the micro level, as a reasonably technologically competent person with good support from my firm, I’m in a more or less ideal position to work from home and so far it’s going OK, mostly. Which is a good thing, not just due to social distancing, but because my 9-year-old’s school has shut down “indefinitely” and while I don’t think he’d set the house on fire if I left him alone for long stretches (I don’t think) if left to his own devices too long he will turn semi-feral, and he’ll be asking Alexa how to swear in Finnish and growling at me as I try to take the jar of peanut butter and the spoon away and tell him for the love of god to put on pants.

Anyhow. The thing about working at home while also “social distancing” is that on one hand, you aren’t spending any time driving places, going through court security, arguing at the lunch table about whether salt mines are real (still my favorite G-rated-except-for-language lunch table argument), or sitting through meetings that, see, really could have been an email. On the other hand, trying to get work done while quote-homeschooling-unquote and trying to not trip over your spouse who is also working at home is head spinning.

I suppose I should remind everyone that my brain, spinning or not, is a strange place under the best of circumstances.

But anyway. All of this head-spinning combined with the lack of an externally imposed schedule and places to be combined with cases and clients still proceeding more or less as usual (though I have managed to cross “attend motion hearing in my bathrobe” off my list) leads my brain into weird directions.

I ended up posting a philosophical rant to my nerd friend listserv last night, wondering how all of this is going to shake out in our little professional responsibility corner. Plainly put, just about every lawyer in the country is going to be working from home at least some of the time for the foreseeable future. Plus everyone is panicked or anxious or depressed or stress cooking or homeschooling or all of the above.

I will not reproduce the rant verbatim (what happens on the listserv stays on the listserv), but I posed a bunch of questions that did not have answers. (For real answers, check out this Law 360 article, featuring my nerd friend Allison Martin Rhodes and others.)

But the things that keep lawyers up at night, generally, are perhaps in conflict with what’s keeping everyone up at night. We worry about attorney-client privilege (is it waived when your kid barges in to your home office screaming “I NEED HELP WITH THE POTTY” while you’re FaceTiming with a client?); trust account compliance (can we still employ proper safeguards for electronic transactions with our home WiFi?); deadlines (sure, it’s probably excusable neglect if you miss a deadline because you are in the hospital, but what about asymptomatic self-quarantine? And what about jurisdictional deadlines?). Meanwhile, our clients may be worried about placement of their children, when their workers’ comp case will be decided, whether they will be incarcerated when the virus peaks. They may need legal services when they are least able to pay for them.

Mistakes are going to get made. This is what happens when things in the bigger world go sideways, because lawyers are human. (Now is probably not the right time to ask the Wisconsin Office of Lawyer Regulation for historical data given that the office is closed until at least April 6 and everyone is trying to work remotely and this cannot possibly be a priority.) But I would expect there will be more complaints, meritorious and not.

The Rules of Professional Conduct don’t take time off for social distancing, but at the same time, they are supposed to be rules of reason (it’s right there in the preamble). So I would hope that the regulators would show at least some grace as we all fumble through doing the best we can with what we have. But discipline, as always, will be a lagging indicator—we won’t know what the problems are or what enforcement will look like until it happens.

In the meantime, let’s try to show others grace where we can even without courts telling us we have to. Let’s give extensions or stipulate to such motions as freely as we can (Wisconsin lawyers are pretty good about that); let’s maybe not insist on in-person depositions or file motions to compel because the discovery responses weren’t notarized. Let’s assume, if people don’t get back to us as quickly as we would like, they are tending to immediate, Maslow’s Hierarchy type health and safety needs and not blowing us off intentionally. Let’s not be That Guy, okay?

We’re all in this together, even as we are apart, and my nerd friends on the listserv reminded me of that last night. Sure, there’s always the one That Guy, but it seems that most everyone else is being a little more forgiving and a little more patient. Hang in there.