By now, many of us (maybe even most of us) have family members or friends, or colleagues or acquaintances, who have tested positive for the virus, or have been hospitalized or put on ventilators, or even worse. All in the context of isolation and distancing, and in the face of understandable fears for our own personal health and job security, hitting far and wide, and all too close to home. Such are our times.
Lawyers that we are, our core wiring and an adrenaline rush have no doubt kicked in, prompting us to triage a hierarchy of needs: family and personal safety first, of course; then staples and supplies; and plans and strategies in the event of illness or emergency. That’s who we are—inclined to be, or at least seem, in control. It’ll take some getting used to, this not being totally in control. On top of all that, we are obliged and lucky enough to be asked to help clients and colleagues, who have their own human, as well as law-related and business-related, needs. It’s a lot, and sometimes it’ll seem like too much. Such is our lot.
It’s hard to discern when and how we’ll get to the other side of this experience, and how we’ll even know when we get there. Short of a vaccine, I suppose. It’s like running in a marathon with no finish line, or climbing a cloud-topped and summit-less mountain. We seem not only to be looking, but stepping, through the looking glass. There will be phases and stages along the way (all of which we will likely have in common, even if at different times): patience and fortitude; confusion and hope; periodic denial or anger or panic; undifferentiated pressure and endless to-do lists; distraction and lack of focus; and bouts of exhaustion. The fact that we all have or will have these moments should, in its own way, prompt a brief but collective sigh of relief. Put simply, they’re entirely normal.
Luckily, along the way, we will also have moments of grace, gratitude, and humor. We will employ and enjoy new twists on our vocabulary—with N95 being a mask instead of a highway; Zoom being a new lens into our lives (and our home décor); the “Corona Curve,” describing how we navigate our occasional walks under the rule of social distancing; and, of course, the 7 p.m. “Pounding of the Pans.” We will be reminded that a smile and laughter, too, can be a good (and maybe the best) medicine: watching a Rube Goldberg video; an Ode to Joy flash mob; a Some Good News episode; stuffed animals in the window for kids to wave at; for the lucky few, the now-sweet smell of Purell; a chaotic and even comic multi-site family holiday; and jazz, opera, a single cello, or hip-hop from balconies around the world.
Amazing, indeed, how the technology that allows us to “go remote” helps us to stay “in touch.” We will remember, too, to be grateful to those who are helping, and supportive of those who are not as fortunate. Disproportionate impact is surely a fact. In its own way, today’s virus has laid bare our world’s unfair disparities—putting in stark relief the need for civilized relief. Imagine, just for a moment, what it might be like to be ordered to “stay at home” when you have no home, or when you can’t do from home the job that you and your family depend upon; or when “home” is where violence lurks or lives.
Not that you don’t have enough to worry about, but in the midst of all this, we lawyers also have some especially important matters to tend to—and work to do. We are, after all, a unique profession, bound by a cultural contract of service and citizenship. It’s in our rules; it’s part of our pledge and promise. We are “public citizens,” bearing a “special responsibility for the quality of justice” and a duty of “public service.” We are obliged to play a “vital role in the preservation of society.” Couple these obligations with the troubling reality that the very fabric of our democracy itself might be especially vulnerable during times of crisis, and our duty as guardians of democracy comes forcefully to the fore. Here are three dynamics, in particular, that are cause for concern.
The rule of law
The origins of the phrase are ancient and a bit elusive, but we know what it means: “Lex Rex,” not vice versa. We not only respect it, we revere it; we depend upon it. It is our bedrock, our North Star. Its key is the separation of powers and checks-and-balances in our government—an equilibrium amongst equal branches. It depends upon independent, non-political judicial review—and the vote—as well as equal justice, and access to justice, for all. Representatives, senators, judges, and presidents alike are all required to take an oath to support, preserve, protect, and defend the Constitution. Our rights under the rule of law were not only granted but fought for and won, and taking those rights for granted will only serve to weaken them. As lawyers, we are responsible for guarding and preserving the rule of law. That is one of our most important “essential services” during these difficult days.
But the rule of law is being subjected to surprising and disturbing challenges, isn’t it? Even attacks. Importantly, no elected official has “total” authority (the root, of course, of the term “totalitarianism”); and no virus, no matter how powerful, has the authority to crown a king or queen. So what should be our response to such challenges? Well, surely not silence. Silence either is or is deemed to be consent. No, I think we have to speak up—to clarify and confirm, and to educate. That may be uncomfortable on occasion, but it is also what our unique role requires, and what the public deserves. Maybe these moments call for a new wave of civic education, following the lead of Justice Sandra Day O’Connor. More people, current citizens as well as new citizens, need to know more about the basic and delicate design of our democracy. That doesn’t call for politics, it calls for citizenship, and that, too, is who we are. It’s the least we can do.
None of which is theoretical or ethereal. No, there are on-the-ground, real world realities to the rule of law, which require us not only to speak up but also to roll up our sleeves. On the criminal front, for example, there are grave concerns about custody (including the rights and health of prisoners, prison staff, and law enforcement), and disturbing dilemmas arising out of the rights of speedy, public, and safe jury trials and proceedings. On the civil side, although sometimes not so dire, we have to be concerned about emergencies and equities, and the need to have safe hearings to consider them.
The right to vote
Our right to vote is “the crown jewel of American liberties;” the “very foundation of our American system;” “fundamental” and “precious” and “the essence of a democratic society.” It is and should be our secular sacrament; in its own way, sacred. It’s also “Civil Right No. 1.” To put it bluntly: If you don’t or can’t vote, you won’t be counted—which puts in peril our ability to influence our shared political dynamic. This should be an especially powerful presence this year, when we mark the 100th year since the passage of the 19th Amendment, and while we conduct thousands of elections all over the country.
It’s also a fragile right, subject to clever, even cunning, schemes dedicated to suppression (warped gerrymandering, where politicians seem to choose the voters instead of vice versa; burdensome ID demands; and unnecessary restrictions on absentee or mail-in or multi-day voting, even in the midst of bipartisan support). Voter suppression is like water running into our home’s basement—seeking the lowest levels and rotting out the footings.
Our duty, then, is to preserve and guard the right to vote—to strengthen it, not strangle it. We should guard against real voter fraud, of course, if and wherever it exists, but we needn’t be stymied by fabricated fraud. This is especially true now, when the health of voters and polling place volunteers is at stake, all of which is tied to the health of our democracy. That all seems fair enough. The point of an election, after all, is to win the vote, not to suppress it or deny it altogether. Maybe we need an emergency infusion of funds to build a better infrastructure to support the people’s right to vote.
The justice gap
Our justice gap is widening, and it threatens to widen even more in the wake of the pandemic. For example, civil legal aid is forced to turn away fully 60 percent of those otherwise eligible for help because of lack of resources. Beyond that, a justice gap is going to explode for those neither “poor enough” to get what civil legal aid help there is nor “rich enough” to hire the lawyer or lawyers of their choice.
Right now, our economy seems to be in a “medically induced coma,” necessary for our nation’s health, but not meant to last for long. That light at the end of the tunnel, though, may turn out to be a train barreling our way, bearing boundless, burdensome, and all-too-real legal needs. It has all the makings of a brutal vice, with needs skyrocketing and resources plummeting. Our coming realities could well include clients (corporate or individual) considering stand-downs and slow-downs or downright shutdowns, cutbacks in non-essential litigation or transactions, and drag-outs in the payment of accounts payable. All of which will likely be coupled with pressure to keep production up, collections flush, and docket management on track, no doubt leading to fall-back leaves and furloughs, accompanied by genuine concerns about lawyer well-being and professional responsibility. Not all of the coming legal needs will fit into the current models of our professional business; the flood will likely be high in volume and of ferocious velocity, with only low or no hourly rates available. We won’t be able to “pro bono our way out of it.” Returning to our American way of life will surely require getting back to business, but it will also require delivering justice as promised. We will need new and creative models, as we open our way toward our new and next normal.
This is, to say the least, “an uncertain spring,” and it promises to reach into our summer and beyond. The process of recovery will not resemble an on/off light switch. No, it’ll be more like sliding a dimmer toward the light. Hopefully, we’ll have the chance and strength to find value in these vulnerable times, and to note and take advantage of lessons learned. That is our responsibility as well as our opportunity. We all, of course, long for the day when we can get together again. It’ll come; and we will value it anew. In the meantime, may “[n]othing ill come near thee.” Along the way, don’t leave love or friendship unsaid. Be strong, safe, and kind; and stay “in touch.”
TOM NELSON is a partner at Stinson LLP (formerly Leonard, Street and Deinard). He is a past president of the Hennepin County Bar Association.