Friday, March 20, 2020
Joint Statement from AALS Clinical Section and CLEA: Vulnerability and COVID-19
A JOINT STATEMENT OF THE AMERICAN ASSOCIATION OF LAW SCHOOLS CLINICAL SECTION* AND THE CLINICAL LEGAL EDUCATION ASSOCIATION
March 19, 2020
We are clinical law professors working all around the United States, in rural and urban settings, representing vulnerable families, incarcerated people, small business owners, immigrants, community associations, veterans, low-income taxpayers, and many, many more groups of people with whom we seek the full protections and rights afforded by our laws. Across the country, our clinical programs provide more than three million hours of free civil and criminal legal services each year.
From this wealth of experience in diverse communities, we know that much of the mainstream outlook on coronavirus preparation and mitigation, as well as vulnerability to the virus, misses crucial issues facing large swathes of our nation. We are writing to add these missing perspectives and to urge immediate action at the local, state, and federal levels.
When a virus spreads into a deeply unequal society, we should not be surprised to see deeply unequal impacts. Some of the particular vulnerabilities worrying us include:
Our massive prison population. This population includes those serving criminal sentences after convictions, the large number of people held before trial who could safely be released to the community but for the unaffordability of bond, and the tens of thousands of migrants being held either at the border or in massive facilities in the interior of the country. In all these settings, where people have limited access to health care and cannot avail of the social distancing recommended by the Center for Disease Control and Prevention (CDC), the virus will spread quickly. And while incarcerated people cannot access the world outside, correctional officers may be bringing the virus from the outside into these facilities.
Low-wage and service workers. People in the most public-facing occupations are necessarily more exposed than office workers, remote workers, and many others who are being encouraged to self-quarantine. People working in pharmacies or grocery stores where we get our medicine and our food, people working in restaurants, people cleaning our schools and office buildings — they all face a far greater exposure to the virus than people who are able to limit their time outside of their homes or outside of other carefully sanitized spaces.
Low-income families who rely on public transportation. When the only way to get to work is a crowded bus, social distancing is impossible.
Immigrants without health care. From green card holders to the undocumented, immigrants have been deterred from seeking health care. The Trump Administration’s “public charge” rule makes people ineligible for citizenship if they receive certain public benefits. Even when a benefit does not make people ineligible, the fear and confusion around this issue — as well as the possibility that something allowed today might make problems with a change in policy tomorrow — has led to a massive drop in people accessing programs that improve baseline health. And those who lack legal status have no access to health insurance under the Affordable Care Act.
Participants in overcrowded court systems. Courts that serve poor people do not look like the courts we see on TV or in the movies. We regularly appear in courts with crowded waiting rooms, where thirty cases or more might be called in a single two-hour period. Whether that is a criminal court where defendants (and their lawyers) are awaiting arraignment, or an immigration court where dozens of people wait side-by-side in standing-room-only courtrooms, far too many of our courts are ill-equipped to keep people safe. And yet those same people, vulnerable to infection in those crowded, unsanitized spaces, would bear exceptionally high costs if they did not show up to court: evictions, warrants for arrest, defaults that could result in seizures or wage garnishment, orders of deportation, the loss of child support or unpaid wages, and more. We are grateful that, increasingly, jurisdictions are taking smart, timely measures to reduce these risks.
Health Care Workers. All health care workers, even those who otherwise occupy privileged positions in our society, are working the frontlines of the response to coronavirus, which is an extraordinary commitment and service. Among this category, though, are people facing extra vulnerabilities. With a median hourly wage of $13.72, nursing assistants and orderlies have limited resources to keep themselves healthy, even while working in contaminated locations.
People Experiencing Homelessness. Already highly vulnerable to a host of illnesses, those who rely on shelters face acute difficulties in maintaining social distance from those who may be infected with coronavirus, because shelters can be terribly overcrowded. They may also lack reliable access to soap and water. And with more than 30% already suffering from chronic lung diseases, the virus is likely to present more severely amid this population.
Unaffordability of Preparation
Much of the good, common-sense advice about preparing for coronavirus asks people to have supplies on hand for about two weeks, in the event that self-quarantine is needed. In Midwestern cities, the average consumer spends a little over $300 for food and personal items for two weeks. In more expensive cities in the Northeast, that number rises to about $350. Those amounts are well over half of the two-week take-home pay for a minimum wage worker. And the Federal Reserve has found that fully 12% of Americans would be unable to find any way to cover an unexpected $400 expense — meaning that 12% of the U.S. population is unlikely to be able to afford the supplies needed for an effective self-quarantine.
The Challenges of Social Distancing
We have already demonstrated why the vulnerable communities we work with are more likely to come into close contact with the coronavirus. Once exposed, people need to self-quarantine, according to the CDC. For three distinct reasons, this is a difficult solution for many of the people we work with.
Necessity of Work. People without paid sick leave face the choice between staying home — which will help prevent the spread to others — and providing for themselves and their families. Without paid sick leave, we leave these individuals in an impossible situation. Today 34 million Americans lack paid sick leave, and the first wave of federal coronavirus legislation left millions of these workers still unprotected. Some SNAP food benefits recipients are also limited to three months of aid in a 36-month period if they are out of work or underemployed, although those requirements are in flux for many states starting in April. For those still subject to those requirements, missing work may mean missing out on crucial nutrition. We applaud the emergency efforts, like legislation in Washington, D.C. and elsewhere, aimed at assuaging economic insecurity to help people comply with social distancing.
School Closures, Poverty, and Childcare. One of the mitigation strategies we are increasingly seeing is school closures. Although essential, these closures are especially difficult for the communities we serve for three reasons. School may be the only place where a poor child can reliably access nutritious meals provided by school lunch programs. Also, when a child is home from school, someone needs to care for that child. Parents without childcare risk child protective services or criminal investigations if they work and leave their children home alone. School closures also create inequities between well-resourced school districts that can move learning online, and districts without those capabilities (and within districts, there may be disparate access to computers and reliable internet).
Intimate Partner Violence. Self-quarantine may leave people in dangerous situations. The economic stress of lost wages and work opportunities will harm some low-income people who are victimized by intimate partners and other family members, depriving them of the resources they need to maintain their safety. Moreover, the loss of employment may drive increases in violence; intimate partner violence against women is highly correlated with male under- and unemployment. Quarantine will mean that people in violent relationships may find themselves sharing small spaces under stressful conditions with those using violence against them, without the ability to seek other shelter or assistance, for significant periods of time. The World Health Organization attributes a connection between disasters and increases in domestic violence and child and elder abuse to the lack of provisions, the dismantling of social networks, and the stress of lost earnings. As one clinician noted, “For survivors who haven’t escaped yet, telling them to stay home is telling them to stay in the most dangerous place possible.”
Lack of Access to our Clients. Prisons are banning visitors, and lawyers will have greater-than-normal difficulty accessing clients. As universities close down, we will have greater challenges communicating with and meeting other clients. While clinical professors across the country are rapidly adapting our intensive teaching and supervision methodologies to use online tools, we also know that many of our clients lack access to the internet at home, and nothing will be able to substitute for in-person meetings with many whose cases are moving ahead even as the virus inhibits the ability of lawyers to do their job.
We fear that as the economy lurches toward a recession, the very nonprofit agencies whose services do so much to meet all the challenges laid out above, will lose vital grant, private, and government funding, making all of this much more difficult. Our clinical programs across the country support many innovative community organizations who make profound differences in small, unsung ways — and those organizations will need tremendous support to continue their critical work in these times.
We also have great concern that, even with some short-term moratoria in place, evictions will ultimately rise as people choose between medical care and paying rent. We fear the virus will depress responses to the census, which will have massive down-the-line harms for funding of vital government programs.
We greatly worry about what will happen as courts close or limit access to civil litigants. Domestic violence survivors will not be able to secure final protection orders or enforce child support orders. Workers cannot hold employers to account for unpaid wages — and risk missing statutes of limitation on filing those claims (though we hope courts will extend, or “toll,” those deadlines). Enforcing these rights matters. Court closures will make much of that work impossible.
The coronavirus exposes structural injustices that have long existed. This crisis shows that the boundaries we draw amongst ourselves are profoundly porous, whether it is the corner-office law partner exposing the low-wage contractor cleaning his building after hours, or the wealthy family whose elderly mother is cared for by an underpaid nursing aide who took three contaminated buses to get to work.
We hope that by revealing our deep and mutual interdependence, this crisis helps move forward policies that would benefit us all by reducing some of the inequalities embedded in our society. Paid sick leave and universal health care are obviously relevant to this current moment. But so are challenges to our sky-high rates of incarceration and the use of cash bail, and the efforts to raise the minimum wage and end immigration detention.
For decades, we, as clinicians, have seen the many ways that injustice flourishes in our society. We hope that, if nothing else, the COVID-19 pandemic shows us the importance of interconnection, and how all of us do better when society works for all of us. We call on our elected leaders to make justice a core part of all responses to this pandemic. And we ask everyone to consider how a more just society would make so many things better than what we see today.
March 20, 2020 | Permalink | Comments (0)
Monday, March 16, 2020
Pandemic Pedagogy: Duties to Clients During Disruptions
We're all making necessary and difficult adjustments to clinical teaching and practice. I met my Community Justice Clinic seminar remotely today for the first time; my students are scattered. The beauty of clinics is that everything is a teaching moment as we prepare for practice. I started my class today with a long discussion on lawyers' duties to clients when we have conflicts and crises, whether a global pandemic or really bad traffic.
This is not revolutionary or groundbreaking, but here I share my general notes that guided our conversation today. We shared more stories and questions and discussed other situations and scenarios, but this was my scaffold for the class. I hope this may be helpful.
Lawyering During Disruption
Last Year: Woolsey Fire.
This Year: COVID-19 Pandemic response.
Other scenarios -
Your own sickness.
Personal scheduling conflicts.
Death in the family.
You have a hearing set for a client tomorrow. Today you get sick and are sure you have the flu; tomorrow it’ll be worse. You’ll be contagious. Do you have to attend and handle the hearing for the client?
What basic rule governs this?
ABA Model Rules of Professional Conduct 1.3
California Rules of Professional Conduct 1.3
For California, note “reasonable diligence” and the other qualifiers.
Some scenarios from my Ethical Lawyering class, MPRE style:
Scarlett is a young associate at a mid-sized law firm. She is very talented and hard-working and makes it a practice never to turn down assignments from partners. Three partners have come to rely on her for many projects. Melanie asks her to handle document review and discovery for her mass-tort, pharmaceutical cases. Rhett asks her to work on research and drafting for his appellate practice. Ashley has asked her to cover depositions in his thriving medical malpractice work. One day, she has a discovery hearing scheduled for 9:00 in Pasadena for Melanie and a deposition scheduled at 12:00 in Encino for Ashley. She thinks she can make it and doesn’t expect the hearing to be a problem, but she is wrong. The Magistrate does not convene the hearing until 9:45, and it takes an hour to sort through all the objections. The 101 is slammed, and Waze says it will take two hours for her to get to the deposition. She doesn’t want to admit defeat or appear unprepared, so she takes surface streets to try to race to the deposition. She gets stuck in traffic near downtown and arrives at the deposition so late that everyone has left.
Has Scarlett violated Rule 1.3?
A. No, because the court is out of her control.
B. No, because traffic is unpredictable in Los Angeles.
C. No, because her supervising attorneys put her in an untenable situation by their lack of coordination and poor management.
D. Yes, because she did not make alternative arrangements for the deposition.
Charles Wallace is a sole practitioner. He employs one assistant, Denny, and one paralegal, Calvin. Charles Wallace handles a variety of matters, from wills and trusts to DUI defense and divorces. At forty years old, his office is profitable, and at any given week in a year, he has 200 paying or retained clients, and he has approximately 30 to 40 active cases. It’s busy, but his firm has a good system to handle it all. Last week, Charles Wallace had a heart attack that killed him almost immediately. He never gained consciousness before he died, so he missed several hearings and client appointments.
Has Charles Wallace violated Rule 1.3?
A. No, because his estate cannot practice law.
B. No, because his staff could communicate the sad news to his clients.
C. Yes, unless he designated another lawyer to handle his client’s business in the event of his death.
D. Yes, unless he was able to notify his clients before he died.
Let’s establish some principles:
When do our ethical duties begin with clients?
Do emergencies, conflicts, sickness, disasters, or crises suspend our ethical duties to clients?
Is this fair? Does it matter if it’s not?
How long do ethical duties survive to clients?
What are the duties most likely to be threatened or challenged by a disruption?
What are the exceptions to ethical duties we owe to clients?
With principles established, if disasters and disruptions are inevitable, if we do not know for whom the bell tolls, how should we react when they happen to fulfill our obligations to clients?
What is the worst option? (Abandoning the client, to their prejudice.)
What is the best option? (Being prepared with good systems so that no crisis is a surprise or shock to practice.)
If the conflict or problem is actually, literally unavoidable, what should you do as soon you can act?
(Alert the client. Alert the court. Communicate. Ask for help (coverage, continuance, extensions, substitutions))
How can you temper the harm to your client? (Communicate. Take all the blame coming to you. Avoid prejudice to the client.)
How can you avoid the crisis of a disruption? (Have systems and options ready. Don’t take on more than you and your systems can handle. Operate with margins. Have backup and help available. (And lend help when you can.))
Apply these ideas to current practice in the clinic, to our clients.
Do all you can to avoid harm and prejudice to clients to whom you owe duties and who trust you with their lives, liberty, fortunes, families.
Duties to clients come first, but client preferences and convenience do not necessarily come first.
Communicate (more than you think you may need to). With clients, partners, courts, opponents, others as necessary.
Be prepared in advance by building resilient systems and partnerships.
Work with margins.
Triage and prioritize.
Ask for help.
March 16, 2020 | Permalink | Comments (0)