Essential? It depends.

So, I have now been exclusively working from home for . . . a number of days that … who am I kidding? Just like you, I barely can keep track of time at this point. March seems to have been 3 years long so far. It’s definitely been a while. And, importantly for context of this post, I’ve been doing it now for longer than the time that my firm’s office has now been closed.

My firm’s office, the Memphis office, of our multi-office firm, closed at 6pm on I think it was Tuesday of this past week. We did this because the “safer at home” order entered by the Mayor of Memphis went into effect at 6pm that day and it indicated that lawyers delivering legal services were only “essential services” exempt from the stay-at-home restrictions when we were delivering legal services necessary to the delivery of others who were providing essential services.

Our office had to go a different route than our Nashville office because Nashville’s “safer at home” order treated the delivery of legal services as essential services without exception.

This discrepancy from municipality to municipality in our state has prompted the Tennessee Bar Association to issue a public statement lobbying for the idea that lawyers should be treated as essential services under any such orders. Discrepancies elsewhere have also caused the American Bar Association to lobby for the same outcome: that any order requiring people to stay at home should include an exception for lawyers as essential services.

But, here’s the thing. In the context of orders for public safety designed to keep people in their homes for social distancing and prevent people from commuting to common spaces for the performance of work — most of us lawyers are not performing that kind of “essential services.”

Most of us with law licenses and an internet connection can do our jobs from the safety (both our own safety and the safety of others) of our home.

The taking of nuanced positions is difficult in normal times. It is incredibly difficult in the middle of a pandemic, but I feel obligated to say to both the TBA and the ABA that it is fundamentally irresponsible to stake out a non-nuanced position on this topic.

In the middle of a pandemic, certain things are undeniably essential services: healthcare, food, water, things related to infrastructure… the list is admittedly longer than that… but reasonable people should be able to agree that, in such circumstances, only certain lawyers in certain situations should qualify as essential services.

Lawyers representing criminal defendants? Absolutely. Lawyers working as prosecutors? Absolutely. Lawyers who somehow actually have a trial that is actually going forward despite the circumstances? Certainly. Lawyers representing juveniles defending themselves in delinquency proceedings where the juveniles could end up in prison? Yes.

But, the rest of us? No matter how important what we are doing is – and I’m NOT trying to gainsay the importance…I’m doing quite a few things that I would defy anyone to argue are not important right now (well, not “right now,” right now I’m just writing an incredibly unimportant blogpost) — but in the context of a discussion about whether we have to go to a business location, and require other staff members to do the same, the answer has to be simply no.

Lawyers are exceedingly important. But so many of us can do the things we do on a daily basis using only technology and so much of what we do can routinely be pushed off for 30 days at a time that, if the circumstances weren’t so grave, it would be almost laughable for us to be arguing so hard to be treated as exempt from stay-at-home requirements.

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