First, thank you everyone for your messages of condolence.

Something I promised myself for perhaps irrational reasons was that I was not going to give a presentation or publish anything about “preparing for the worst” while my dear friend and colleague was ailing. It seemed invasive somehow.

Well.

I routinely counsel others on how to prepare for emergencies we don’t like to talk about—our ethical duties to our clients continue even if we become disabled, or die (though Wisconsin’s Office of Lawyer Regulation does not routinely prosecute violations posthumously, and we can be grateful for those small favors). I’ve handled more than one call from someone who ended up in the no-good-deed-goes-unpunished scenario of having a bunch of files dumped in their office from a grieving and panicked spouse with little more than a “now what?”

Comment 5 to SCR 20:1.3, the duty of diligence, specifically directs solo practitioners to have a plan designating another lawyer to review files, notify each client of the solo’s death or disability, and determine whether there is any need for immediate protective action (such as requesting extensions or even filing a complaint to get ahead of a running statute). In 2018, the State Bar or Wisconsin set up a “succession registry” whereby attorneys can name a successor (with permission, please) and record that information in a voluntary registry. Should the solo practitioner pass away, disappear, or become incapacitated, judges, clients, and others can request the name of the successor to avoid the “now what?” above.

Failing that, SCR Chapter 12 provides a petition process by which a court may appoint an attorney to act as a trustee for another lawyer who has died, disappeared, or become incapacitated without leaving a successor.  The problem is, according to an article in the Wisconsin Lawyer, it’s hard to find someone willing to act as trustee, and I’d imagine many courts are not all that familiar with this process. While Wisconsin seems more amenable to the “petition for a writ or something, it’ll work out” style of litigation than some other jurisdictions, it’s still an expensive and confusing way to go (especially if, say, you are the office manager or spouse of a lawyer and not a lawyer yourself).

Needless to say, regardless of whether you are a solo or work at a firm, contingency planning is important (though if you are a solo it takes on added importance). The last 10 months of my professional life would have been a lot harder if I’d had to scramble to figure out what my colleague was working on, what the deadlines were, what needed to happen. We overlapped on most of our cases, and were able to discuss the ones that were his alone. My firm keeps an electronic calendar that is easily accessed by all employees, and it’s easy to search Wisconsin court records by bar number to make sure all cases are accounted for and properly scheduled.

This is perhaps one of very few examples in my life where the cobbler’s children actually had shoes—I was, at least on paper, prepared for this. The logistics of the summer were relatively straightforward, though I am not a fan of practicing with all of that uncertainty.  

Which means Day 31, not that I’m counting, is going great. Just dandy.

The emergency planning we did prior to May 2019 and then up to March 2020 could not have prepared me, or my firm, or probably most firms, for what my son has dubbed the Shenanigans.

Sure, some 21st Century best practices have proven essential—almost everything that comes through the door is scanned and stored on a server that can be securely accessed remotely. We can stream CLE and hold everything from motion hearings to client meetings to “please I need to see other adults who I don’t live with” via videoconference. Many lawyers are able to continue working their normal hours (though I seem to have gone more nocturnal than usual) and case load, albeit in yoga pants.

I realize I am far more fortunate in this situation than others—my family is healthy, safe, and employed; I have a spouse who can make sure my son doesn’t set the house on fire trying to make things in the toaster that are not toast while I’m on a court call. (Son, looking at me with still-wet hair and a radio station T-shirt, his eyebrow raised: “Good thing it’s not a FaceTime call, isn’t it?”) I’m still able to crack jokes even if people reading this may think they’re inappropriate.

That said, I would be lying if I said I enjoyed anything about this “social distancing,” even as I am managing productivity, doing some good work, and (mostly) keeping a game face. I’m never going to be posting memes about how it’s been nice to slow down and appreciate the little things (I do not speak throw pillow). It’s isolating. I’m away from family, colleagues, and friends (and at a time when being away from family, colleagues, and friends seems even more unfair). I suspect much of this is true for most lawyers. We’re a social bunch. (Though I’m a chatty extrovert and I miss even the normal small talk with strangers that comes from buying a sandwich. Your mileage may vary on that.)

And I’m honestly not sure what could have been done to prepare for this—the overwhelming majority of us have never had to “socially distance” for any reason. Nobody alive remembers the 1918 flu.  We know how to prepare ourselves and our businesses for economic downturns, and illnesses, and natural disasters. But not all at once, and not when we can’t even be in the same room.

I still don’t have answers. We’re still doing the best we can with what we have. And as a reminder, lawyers are particularly susceptible to mental health and substance abuse issues, and right now everyone is struggling, and it is not a sign of weakness to get help. Or call someone on FaceTime, regardless of what your hair looks like.