When the coronavirus hit, lawyers quickly shifted into new modes of working. Some changes simplified their practices; others have made routine tasks more complicated.
We asked lawyers across different practice areas how COVID-19 changed their practice. The lawyers are:
- Jonathan Cohn, Gerstenzang, Sills, Cohn & Gerstenzang; Executive Committee member, Criminal Justice Section
- Elizabeth Shampnoi, Shampnoi Dispute Resolution & Management Services, Inc.; Chair, Publications Committee, Corporate Counsel Section
- Michelle Wildgrube, Cioffi, Slezak Wildgrube; First Vice-Chair, Real Property Law Section
- Linda Maryanov, Zimmerman and Maryanov; Trusts and Estates Law Section
How has COVID-19 changed your practice day-to-day?
For the most part our practice has returned to normal. There are still some courts that are holding virtual conferences and pleas. However, most courts in our area have returned to in-person appearances. The most significant difference is that the DMV chemical test refusal hearings that were previously held in person have now changed to virtual hearings.
Everything has gone from in-person to virtual, except for the rare instance in which counsel and the parties wish to meet in person while taking the necessary precautions (i.e., social distancing, wearing masks). I think it will remain this way for the foreseeable future. There are also more “case emergencies” than usual. I think this is because people are experiencing heightened levels of anxiety beyond the norm.
We are busier, sometimes working remotely, and constantly on call. We worked 100% remotely for the first several months, relying on scanned documents and cell phones. Since March, we have held closings at offices, but also on porches, hoods of cars and in parking lots. Closing by mail, where documents are overnighted to the purchaser’s attorney and checks are overnighted to the seller’s attorney, have become common, whereas prior to COVID-19 such practice was rare. We have also worked to limit the attendees at in-person closings, brokers are no longer attending closings, and sellers usually pre-sign documents. This lessens the number of people in the closing room, which we hope makes the process safer. We are not seeing remote signing being used; banks are still requiring that purchasers attend the closing in person.
COVID accelerated my plans to surrender my midtown Manhattan office during winter 2021, and I am now working full-time from a home office on Long Island. My practice is still my practice. I’m still doing the same kinds of tasks; some are easier, some are way more cumbersome. I just have a much shorter commute. Regrettably, I no longer have the excuse that I don’t have more time to exercise.
Have you seen a change in your level of business?
Cohn: Initially, the number of arrests appeared to decline but the level of business has gradually returned over the summer.
Shampnoi: Yes, my business has increased exponentially. Once the pandemic started, people became increasingly motivated to avoid litigation and bring matters in litigation to a close quicker and more efficiently to avoid the cost and uncertainty.
Wildgrube: Yes. At first, in March and April, we had a bit of a slowdown in real estate as brokers were unable to show houses and county clerks’ offices were closed. Upstate, in May, we started to see real estate open up and over the summer and fall we had more closings than we’ve had in recent years. This was due in part to the backlog opening up and in part because COVID-19 has given people the opportunity to work remotely, so they can live anywhere, and upstate New York has become a popular place to relocate to. We also think people made major decisions while quarantining, because they either became tired of their home or their living situation, so people are moving from their apartments and homes into new homes.
Real estate outside of New York City has been booming; sellers are receiving multiple offers on their homes and houses are selling fast. This has resulted in a bit of a backlog with banks and title companies. Banks are especially busy because people are also refinancing due to the low interest rates. Commitment letters are delayed because appraisers are overbooked. Title companies find themselves backed up in the searching process because clerks’ offices are limiting the number of searchers who can on-site. Pre-COVID-19, the searchers had unlimited access to the clerk’s office; recently, I had a searcher tell me she is now limited to six hours a week at the clerk’s office. We are finding that it takes a minimum of four weeks to obtain a title search; previously, the wait was about two to three weeks.
Maryanov: I was working full time, and now I am working time-and-a-half. Much busier. I do trusts and estates, so the reasons appear obvious. There was an uptick in new clients and there are recalcitrant clients who had put estate planning on the back burner for six years or more who resurfaced. However, people are profoundly distracted, so even though we have consultations and make important decisions, and I send clients revised documents, some people are not as capable as they wish they could be in finishing them.
What has COVID and virtual practice made simpler?
Cohn: Our practice typically involves a great deal of traveling to courts throughout the state. However, with courts permitting virtual proceedings, we have been able to save time traveling to courts when an in-person appearance is not required.
Shampnoi: Mediation days are a little less stressful because I don’t have to commute up to three hours a day. If a mediation ends at 8 p.m., I’m “home” at 8:01 and not trying to figure out if I can make the next train or have to wait another hour, etc.
Wildgrube: We have the convenience of working from anywhere. We are working to better organize and catalog the information we receive daily. With closings by mail, we are spending less time on travel; however, with more emails and delays and extensions and additional processes for remote closings, we are spending more time on each transaction.
Maryanov: Virtual practice – ahhhh. Well, Zoom consultations are a breeze. I have executor clients in Massachusetts, Maryland, Florida, Pennsylvania, New Mexico, Arizona, Oregon, and Washington State, and Zoom makes it easy to “meet.” I created a weekly Zoom meeting for my Trusts and Estates Law Section colleagues. I am extremely proud of what I built from where nothing existed. I called for an initial meeting in April with my colleagues to discuss remote witnessing and remote will executions. What has developed has been quite amazing, Three meetings on remote executions morphed into a weekly study session. We have had 22 more or less consecutive Thursday afternoon meetings attended by 40–240 practitioners throughout the state. We have had speakers talk to us about two dozen different topics regarding trusts and estates practice. People stepped up with pro bono endeavors. People have made referrals. I have created a beast and I am really proud of it. It’s been phenomenally received, and I think part of why it’s been so well received is that it met a need in this time of COVID. We had one lawyer who had temporarily closed her practice and lived alone; it really helped her isolation and loneliness aside from getting practice information.
What has COVID and virtual practice made more challenging?
Cohn: The DMV refusal hearings have been more challenging as they are conducted virtually. In my opinion, court conferences and other standard appearances that do not involve litigation are more suited for virtual proceedings. It is far more difficult to cross-examine a police officer virtually as opposed to being in the courtroom. For example, simply referring to a document during cross-examination is more difficult when you are not confronting the witness in person.
Shampnoi: Unfortunately, a lot has been made more challenging. Building rapport and trust while connecting with counsel and the parties is often critical to the success of the process. It’s more difficult to accomplish the same connections virtually. While virtual mediation does work, I’ve had to develop a new skill set and adapt to accomplish the same things that might have been more natural or more efficient in person. There are real benefits to in-person mediation.
Wildgrube: Management of emails has become a daily challenge. While working remotely, the number of emails a day has at least tripled, with clients, colleagues, and service providers turning to email because offices were closed or partially closed. Because banks are overloaded and title companies have limited time at the clerk’s offices, we find that we spend a lot of time asking for extensions of various contingencies. Prior to COVID-19, it wasn’t unusual to ask for an extension or two, but now I have contracts where four or five extensions have been requested. This is hard on clients as they are planning to move and requires attorneys to be diligent about tracking dates and deadlines. We are in constant communication with our clients, trying to manage time frames and expectations. Moving is always a challenging process that involves financial decisions, emotional changes and physical labor; adding the stress of a pandemic has made it even more challenging as our clients work to stay safe while relocating.
Maryanov: I understand that these remote executions are necessary, but they are extremely cumbersome and very time-consuming. Frankly, I would much rather be sitting across the desk from my client in my office, but that is not in the cards at the moment. Now, people are witnessing on Zoom, emailing and scanning.
We practitioners hold our breath as this is brand new and there is no treatise we can go to to read about best practices. We are all pow-wowing and flying by the seat of our pants. I’ve already probated one remotely executed will and am just about to probate another.
If you mess up with a will execution, you only find out after; that’s the fear in our hearts. Notarizations are easy; however, the last thing I want to hear is that I notarized your power of attorney and now you are incapacitated and the bank won’t accept the form because they don’t know how remote notarization is supposed to work. Documents are more complex.
What do you envision for your practice, post-COVID?
Cohn: The practice will likely return to mostly in-person appearances with the exception of certain conferences that can be conducted virtually. The court system has become more proficient with virtual conferencing and may utilize this technology to a greater degree when necessary.
Shampnoi: I think going forward, people will be more comfortable utilizing virtual platforms to save time and money. I envision and hope for a hybrid use of such platforms as needed as opposed to strictly virtual going forward. For smaller cases and/or cases where no one is in the same location I think more people will consider mediation. Virtual mediation will also allow counsel and/or the parties to select mediators from different geographical areas without increasing the costs. However, I still think in-person mediation is best for most cases, particularly where there is a lot of emotion and/or nuance. Nothing compares to being face-to-face, together with all of the participants committed to resolving a dispute over the course of several hours.
Wildgrube: I think that people will continue to have the option to work from home because we have found that we can be effective even though we are not in the office. Many of the practices adopted will continue in the post-COVID world, with closings by mail and fewer people at closings because these practices are also convenient to clients and brokers.
Maryanov: I won’t be returning to a city office. Now and forevermore, it is my expectation to work from a home office. When and if needed, I will use my colleague’s conference room for in-office meetings.