Practicing Law in Interesting Times

There is a Chinese curse which says, ‘May he live in interesting times.’ Like it or not, we live in interesting times. They are times of danger and uncertainty; but they are also the most creative of any time in history.

The first months of 2020 have been “interesting times” fraught with danger and fear, but also creativity and innovation. In the age of social distancing and shelter in place, it has not been possible to continue to insist on in-person depositions, or even in-person hearings. Courts and counsel who previously resisted technology, like e-service and remote meetings, have become proficient at logging in on Zoom and embracing all sorts of new online platforms. Attorneys who had practiced hardball tactics in the name of zealous advocacy have been forced to rethink their strategy when courts were unavailable to hear their petty, expensive squabbles. If there is a silver lining to the COVID-19 pandemic, it is the renewed focus on professional courtesy and the technology which has streamlined litigation.

The Los Angeles County Superior Court’s Guidelines for Civility in Litigation provide that “[a] lawyer should advise clients against the strategy of granting no time extensions or continuances for the sake of appearing ‘tough.’”[2] As soon as the pandemic started to spread, the Los Angeles County Bar Association’s Professional Responsibility and Ethics Committee
urged:

Given the current circumstances, attorneys should be prepared to agree to reasonable extensions and continuances as may be necessary or advisable to avoid in-person meetings, hearings or deposition obligations.

But not all attorneys got the message. No history book which will explore the origins of the epidemic will report that 2020 was business as usual. And attorneys who did not see the major shift in focus were in for quite a surprise from judges who were in the middle of shuttering courthouses and emptying the jails to prevent the virus’ steady spread.

In one now infamous case, United States District Court Judge Steven C. Seeger of the Northern District of Illinois dressed down the holder of several copyrights of unicorn drawings for pursuing an emergency temporary restraining order while “the world is in the midst of a global pandemic.” In a blistering opinion, the court stated:

Plaintiff argues that it will suffer an ‘irreparable injury’ if this Court does not hold a hearing this week and immediate[ly] put a stop to the infringing unicorns and knock-off elves. . . . If ever there’s a time when emergency motions should be limited to genuine emergencies, it is now. . . . The filing calls to mind the sage words of Elihu Root: ‘About half of the practice of a decent lawyer is telling would-be clients that they are damned fools and should stop.’ See Hills v. Norfolk and Western Railway Co., 814 F.2d 1192, 1202 (7th Cir. 1987). … The world is facing a real emergency. Plaintiff is not.

The COVID-19 pandemic and the resulting court closings have forced practitioners to learn new ways to move their cases along. Rule of Professional Conduct 1.1 requires attorneys to provide legal services with competence, including remaining abreast of current technologies. Attorneys have scrambled to move their practices online and to learn new platforms to interact with clients, the courts and each other. Rule 1.3 mandates that attorneys exercise “reasonable diligence.” To pursue cases with “reasonable diligence,” attorneys have participated in video depositions and have found that they are a useful, cost-effective alternative. Even significant hearings have moved forward remotely, proving that the advances made possible by technology were valuable and did not short-change the litigants. The crisis created by the pandemic became an opportunity for innovation.

With many sacrifices and losses, come advances and new opportunities. The interconnectedness of the global community has made us all realize that a problem which started a world away could have devastating consequences here at home. But fear has also fostered creativity. Perhaps the most lasting result of the pandemic will be a fundamental change to the age-old practice of law. Interesting times indeed. Erin Joyce

[1] Website: John F. Kennedy Presidential Library and Museum; Speech title: Day of Affirmation Address; Speaker: Robert F. Kennedy; Speech Location: University of Capetown, Capetown, South Africa; Speech Date On Website: June 6, 1966; Website information: “The John F. Kennedy Presidential Library and Museum is dedicated to the memory of our nation’s thirty-fifth president” (Accessed jfklibrary.org on April 15, 2020).

[2] LASC Local Rules, Chapter Three, Civil Division, Appendix 3.A (a)(3).

[3] Website: Los Angeles County Bar Association, Statement by the Los Angeles County Bar Association’s Professional Responsibility and Ethics Committee (Accessed lacba.org on April 14, 2020).

[4] Art Ask Agency v. The Individuals, Corporations, etc., Case No. 1:20-cv-01666, Slip Op. at 1 (N.D. Ill. March 18, 2020) (2020 WL 1427085).

Erin Joyce specializes in State Bar defense, moral character proceedings and ethics consultations. In her more than 18 years as a State Bar prosecutor, she gained extensive experience in State Bar investigations and disciplinary proceedings. She has handled all aspects of discipline cases against attorneys in State Bar Court, from the filing of the complaint through trial and review. She has personally tried dozens of State Bar trials and several appeals, and she has a comprehensive understanding of how State Bar investigations and proceedings unfold. She can be reached at (626) 314-9050 and [email protected].