Will Lawyers Act With Honor After Covid?

By Joel Webber

A physician friend told me a man in his 60s once called his office reporting chest pains, tingling in his left arm, and shortness of breath. To my friend’s amazement, his new receptionist replied without urgency: “The doctor can see you Tuesday at 10.” That careless answer reminds me of my own profession. Watching lawyers associations keep silent as the pandemic threatens livelihoods, I feel a similar disbelief.

As economies reopen, attorneys should step up to help block the tsunami of opportunistic negligence litigation that threatens to derail the recovery. Specifically, national and state bar groups can help federal authorities design and defend safe-harbor rules to protect companies against coronavirus-related negligence lawsuits. President Trump, White House aide Larry Kudlow and Senate Majority Leader Mitch McConnell have already urged such a measure.

Doctors have acted under pressure with incomplete knowledge, doing the best they can. So are policy makers. But out of fear of lawsuits, many businesses won’t reopen as quickly as the country needs. The U.S. Chamber of Commerce has called liability “the largest area of concern for the overall business community.”

Imagine an auto dealer’s service department reopening in careful compliance with federal and state protocols on masks, testing, distancing and all the rest. Then an employee, customer or vendor becomes infected. It may or may not be the company’s fault. The infection may not even have been contracted on-site. But the lawsuit arrives and the auto dealer is forced to spend months or more racking up legal costs.

The fault may not ever become clear, but in any case it will take time: responsive pleadings, document production, depositions, motion papers, motions argued to the judge, and “status hearings” in which the lawyers travel to the courthouse to check in with the judge on scheduling or squabble with opposing counsel. All the while, the lawyers’ meters are running, to the tune of hundreds of dollars an hour, to say nothing of the cost of going to trial or settling.

For my first 10 years after law school, working in a Wall Street law firm and then trying cases before juries, I didn’t realize how broken the justice system was. Only when I found myself on the other side of the table, as a general manager of a corporation, did I recognize how ruinous my profession can be to honest enterprise.

That’s true during normal times, and these are anything but. We are in a war against a deadly enemy; an honorable profession would look beyond profit per partner and other metrics of self-interest to do whatever it can to help. Business clients are doing so: 28 Mile Distilling Co. has shifted from vodka to hand-sanitizer; Cascade Maverik Lacrosse has retooled from helmets to medical face shields; General Motors is making ventilators.

If companies can pivot and doctors and nurses can risk their lives to help, we lawyers should be able to dial back our greed and put our country first.