The World Turned Upside Down
How New York lawyers are dealing with a pandemic that’s put the law on hold
Published in 2020 New York Metro Super Lawyers magazine
on October 28, 2020
Updated on October 30, 2020
It’s an early morning in late May, and business litigator Michael C. Rakower sits in his home office in the leafy suburbs of Westchester County talking to other housebound colleagues from Rakower Law via videoconference. He checks on the progress of cases, determines pressing tasks, and gets status updates of the sort he used to get via casual hallway conversations back when the firm’s Madison Avenue office was open.
“It’s actually more structure than we used to have,” he says. “We never had regular meetings like this.”
The rest of his day consists of the usual: fielding calls from clients, working on motions and briefs, reaching out to expert witnesses. Then there’s the unusual: keeping his four older children engaged with online learning while helping his wife care for their 7-month-old baby. After dinner, he shuts his office door and tackles as much as he can before calling it a day around midnight. “My workday,” he adds, “is extensively longer—juggling between work and home responsibilities.”
In mid-March, as New York City found itself the global epicenter for COVID-19 cases and deaths, the city’s massive court system all but shut down. In an instant, thousands upon thousands of legal cases were put on hold.
But the business of law didn’t grind to a halt; it simply moved into uncharted territory. Some practice areas were swamped, others had little going on. Some attorneys enjoyed working from home, others felt confined. Almost everyone missed the camaraderie. Not only were court buildings closed and hearings delayed, but the field’s social foundations—bar association functions, business lunches and happy-hour chats—either went online or went away.
Blessings and Frustrations
For Mercedes Colwin, founding partner of Gordon & Rees’ New York City office, the necessity of working from home turned out to be a blessing.
“The silver lining behind this cloud is there’s so much more I can do from home when I remove my three-hour [round-trip] commute,” she says.
That extra time came in handy when she helped her firm launch a COVID-19 task force, which provided clients with guidance on the shifting rules and regulations coming from local, state and federal officials.
“There was a dizzying number of exectutive orders and acts coming out, designed to give protection to employees and guidance to employers,” she says. “People needed help keeping up.”
She hopes teleworking continues after the pandemic is over. “There is so much that can be done at home that doesn’t need to be done from the confines of an office,” she says. “Employers can end up with a happier workforce.”
Meanwhile, Leslie H. Tayne wasn’t exactly happy with the temporary shuttering of her 15-employee firm. “My business moves very fast,” she says of Tayne Law Group, a high-volume debt-relief firm, “and I need my staff together as a team. I thrive in my office. I feel like I manage better there.”
Tasks that normally would take a few minutes—finalizing a letter, responding to a client call—got bogged down with back-and-forth emails. Then there was her expanded workload. Everyone from clients to the media had questions about how mortgage forbearance, debt payments and bankruptcy alternatives would work as COVID-19 wreaked havoc on businesses of all sizes. On top of that, many collection firms and agencies had closed shop, making it difficult to negotiate debt relief on behalf of clients.
At least she was ready for it. In 2012, after Hurricane Sandy temporarily shut down her offices, Tayne switched to an internet-based phone line and set up company computers to work remotely. This year, with her staff at home, Tayne continued to go to the office—just around the corner from her Long Island home—since someone had to print escrow checks and make sure client checks were deposited in the firm’s escrow accounts. Plus, with five college-age kids and four dogs at home, it was less distracting.
“Every single day, I tell everyone we are one step closer to this being behind us,” she says. “But all this waiting is very, very stressful.”
Feasts and Famines
One of the practice areas hit hardest—at least in the early months—was criminal defense.
“The positive is general crime dropped,” says Mayo Bartlett, a White Plains-based criminal defense attorney. “But it made me reevaluate what I thought would be a recession-proof business.”
Acording to New York state’s Division of Criminal Justice Services, in the month following Governor Cuomo’s decision to quarantine all nonessential workers across the state, arrests in the city dropped by 65% compared to the same time the previous year. Bartlett feels that with everyone at home, activities that lead to arrests—particularly alcohol-related offenses—dropped significantly.
By summer he’d seen an increase in DWIs but it was still slower than it was pre-pandemic, he says. “The other thing is, a lot of clients don’t have the resources to pay fees. That’s now an equally large issue, because a lot of people who did not lose their jobs [right away] have since been displaced. … Cases that would have been resolved with payment of a fine or restitution now might not be able to. So are they on an extended period of probation or does the prosecution seek incarceration during a pandemic? … Why would we have someone go in for a few weeks or a few days only to come out possibly exposed to COVID-19 and bring that into the community?”
If criminal defense was initially a famine, Barry B. Cepelewicz’s practice area was the feast. An expert in health care matters, the Garfunkel Wild attorney was peppered with questions from health care providers and practitioners: What were the warning signs and risk factors they should look for to determine who should stay home from work? When could facilities begin rescheduling elective services? And how often should operations be testing personnel for the virus?
“Whenever you have hospitals that have people on the front lines and working around the clock in a pandemic like this,” he says, “what every location is trying to do is take care of patients in a safe way, as well as make sure that staff are as safe and protected as they can possibly be.”
As an authority in telemedicine, Cepelewicz was also in demand as more doctors delved into e-health services as a way to see patients. Electronic consultations were aided by a couple of factors: many insurance companies expanded reimbursements for teleservices, and states like New York and Connecticut eased regulations, allowing practitioners not licensed in their states to provide electronic care to those within their state lines.
“A lot of physicians who historically had not used telemedicine started using relatively simple forms of telemedicine,” he says. “But they did have many questions.” Among them: How to deal with privacy and patient consent? How to document appointments? What was the best way to assess symptoms and codify treatments when their patients were hundreds of miles away?
Overall, though, they liked it. “There are quite a few doctors who have been very happy with the way telemedicine was working,” Cepelewicz says, “and will try to find a way to use it going forward.”
With her focus on employment law, Colwin prepared to defend employers and management in the spike of job discrimination cases she expected to see once businesses began to reopen and employees found themselves either terminated or without the work accommodations they anticipated. Colwin predicts that in many of these cases, the employees alleging mistreatment would be at a distinct advantage. “Since we have all lived through this challenge, there is a common denominator between all of us,” she says. “So I think that if a jury finds that employment laws have not been adhered to or were blatantly violated, they will have a visceral reaction unlike anything we have seen.”
Likewise, bankruptcy attorney Melanie L. Cyganowski, partner at Otterbourg, figured her practice would soon be inundated. While she didn’t see a major surge in cases during the early months of the pandemic, she estimates that this would change by the third quarter.
Floundering sole proprietors will likely file for a Chapter 13 bankruptcy, she says, while mom-and-pop operations like restaurants and small retailers would opt for a Subchapter V bankruptcy—a new option designed for small businesses with less than $7.5 million in debt. Both routes, among other things, allow filers to eliminate their debt through multiyear repayment plans rather than liquidate all their assets. “These are working persons’ reorganizations,” she says. “Everything about the bankruptcy process is condensed and streamlined.”
A former chief judge for the U.S. Bankruptcy Court of the Eastern District of New York, Cyganowski is glad its courts embraced digital practices years ago, and has been able to function relatively seamlessly—particularly as the need continues to rise from a perfect storm of circumstances. “You don’t have street or foot traffic,” she says. “People don’t have jobs or are scared of losing them, so they’re cutting back on spending. Meanwhile, you’re paying mega rent, and that structure doesn’t change. We’re in an unfortunate confluence of events that is making bankruptcy something companies don’t want to look at, but have to.”
Reached again in August, she said the economic fallout had exceeded her fears. “The second quarter was rampant with retail filings,” she says. “We’re seeing quite an uptick.”
Adapting and Capitalizing
Overall, attorneys became adept at hosting video chats, adjusted to video-based depositions in which exhibits to the opposing counsel were distributed beforehand rather than during the meetings, and adapted to accepting remote court hearings even though they limited their ability to read body language and discouraged the sort of informal give-and-take that usually transpires when people meet face-to-face.
“A bankruptcy hearing takes place as much in the hallway as it does in the courtroom,” says Cyganowski. “But you learn to make do.”
When the pandemic took hold, Mary S. Croly, a trust and estates attorney at McLaughlin & Stern, was pleased that the governor’s office passed executive orders 202.7 and 202.14, which allowed documents to be notarized and witnessed remotely. This was particularly helpful since the pandemic was forcing people to think hard about their end-of-life plans. Demand for her services surged.
Croly assumes New York won’t continue remote witnessing and notarization into a post-COVID era—and she misses meeting clients in person—but she welcomes the flexibility and hopes the legal industry will embrace such technological advances in the years to come. “Having these options frees up people’s time,” she says. “For many elderly clients, it’s easier to meet virtually.”
Many attorneys didn’t just accept the innovations; they worked to capitalize on them.
At the time of his interview, Rakower was gearing up for several months of remote depositions and arbitrations, with millions of dollars at stake, and was scrutinizing various software platforms for competitive advantage. “Because we are a small firm that regularly battles against law firms with deeper resources in terms of staffing and, in most cases, client budgets, we must always search for timesaving and cost-saving technologies,” he says. “By summer’s end, I will have far more experience than most with remote depositions and remote trials. I am certain this will provide added value to future clients.”
Rakower also came to appreciate the unexpected benefits the difficult times brought to his family. Weekends, he found, were infused with an unexpected serenity. No more shuttling the kids to and from soccer practices and playdates. Instead, the family went on walks around their neighborhood together, sought parks to explore and enjoyed leisurely home-cooked meals. “It has helped us to focus on what is important,” he says. “As a society, we have been fortunate for so long that some of us have lost appreciation for the preciousness of life. I think this is a reminder.”