Potential Legal Problems with Shutting Down Law Firms Due to COVID-19
As the novel Coronavirus, COVID-19, began to spread throughout Pennsylvania in early March, Governor Tom Wolf started taking action to shut down aspects of everyday life in effort to “flatten the curve.” Under state law, 35 Pa. C.S. § 7301, the Pennsylvania Governor has broad powers during a disaster emergency to control and limit the movement of persons in a disaster area. On March 6, Governor Wolf declared a disaster emergency throughout the Commonwealth and thereby enabled the state government to begin issuing orders that would drastically impact the daily lives of Pennsylvania residents.
Governor Wolf began by shutting down public schools for two weeks, then shutting down businesses such as gyms, salons, and entertainment venues. Finally, on March 16, Governor Wolf ordered that all restaurants and bars close their dine-in services and also urged all non-essential businesses to close their doors and move to a remote work structure if possible.
Governor Wolf’s order on March 16 outlined which businesses were considered essential and could remain open such as grocery stores, gas stations, health care facilities, and other similar institutions. However, Governor Wolf’s initial order appeared intentionally vague and remained ambiguous as to other businesses such as law firms. Across the state, attorneys remained divided as some firms went completely remote while other firms kept their doors open but practiced strict social distancing.
On March 19, as Pennsylvania neared 600 COVID-19 cases statewide, Governor Wolf issued another order expanding his previous order to shut down all “non-life-sustaining” services. In an attempt to curb the vagueness of his previous order, Governor Wolf also released a list to show examples of what businesses would be considered life-sustaining. On his list of examples, Governor Wolf specifically identified law firms as being non-life-sustaining and effectively ordered all law firms to close their doors for the foreseeable future as of March 21 (later amended to March 23).
Infringing on Various Constitutional Rights
Governor Wolf including law firms in his order as non-life-sustaining businesses that must shut down has created some potential legal issues. The most obvious issue that has continued to come up is that Governor Wolf may be depriving citizens of their Constitutional 6th Amendment rights. The first clause of the 6th Amendment that Governor Wolf’s order may offend is the right to a speedy trial. When Governor Wolf ordered the closure of law firms, he potentially prohibited criminal defendants from conferring with their attorneys. Once the Courts open again, it is reasonable that some criminal defendants and their attorneys might not be properly prepared to go to trial and thus the inevitable delay caused by Governor Wolf’s order could violate the defendant’s right to a speedy trial.
The 6th Amendment also provides that all criminal defendants are entitled to legal counsel. Even though Courts across Pennsylvania are much more limited in the current functions, the courts remain open and there are still numerous proceedings where an accused person would require counsel. Examples of instances where a person might require criminal defense counsel include police investigations, arrests, and meetings to determine potential criminal exposure. Governor Wolf’s closure of law firms could prevent criminal defense attorneys from providing counsel mandated by the United States Constitution.
Outside of criminal courts, there is also a question as to whether or not the executive branch has the authority to restrict the judicial branch. The United States Constitution is clear on the separation of powers as Article III states that “The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” More specifically, the Pennsylvania State Constitution went on to say in Section 10 of Article 5 that the Court has the sole power to regulate lawyers and the practice of law. Attorneys and their clients across the Commonwealth likely have an argument that Governor Wolf has overstepped the powers of the Executive and has regulated activities reserved for the discretion of the Judiciary.
Law Firms Move Forward Under New Guidance
In response to the legal concerns over how Governor Wolf’s order may affect law firms in the Commonwealth, the Administrative Office of Pennsylvania Courts (AOPC) issued guidance on March 20 which was approved by the Governor’s office. In its guidance, the AOPC referenced an order from the Pennsylvania Supreme Court stating that law firms may still be open to the extent necessary to participate in court functions deemed essential by their county’s president judge. The Pennsylvania Supreme Court took note of the Governor’s approval of the AOPC’s guidance and subsequently dismissed a case against the Governor as moot.
The case against the Governor, dismissed by the Pennsylvania Supreme Court, claimed that the Governor infringed on the Judiciary’s exclusive authority to regulate the practice of law. In dismissing the case as moot, the Pennsylvania Supreme Court asserts that the AOPC’s guidance has corrected the issue and has correctly given the power to regulate law firms during the pandemic back to their county’s president judge. The AOPC, the Pennsylvania Supreme Court, and Governor Wolf are all in agreement moving forward that the Pennsylvania State Constitution must be followed, and the practice of law must be regulated by the courts and not by executive order.
A Gray Area of “Essential” Proceedings
In accordance with the Pennsylvania Supreme Court’s order on March 18, all Pennsylvania Courts are generally closed to the public through at least April 3. However, some proceedings will still take place if they have been deemed essential by the county’s president judge. Accordingly, what proceedings are considered essential will vary by county. Even within counties, the definition of what is and what is not an essential judicial proceeding may vary daily as courts continue to release new administrative orders from the president judge providing additional guidance.
If you are facing a legal issue that is urgent and should be considered essential by the president judge in your county, then you should consult with an attorney to determine how the complicated timing issues facing your matter can be resolved during this unique time. With the courts being closed to the general public, some people may be faced with challenges regarding filing deadlines and statutes of limitations.
How Colgan and Associates can help you
The attorneys at Colgan & Associates are prepared to work through the court closures and are equipped to be flexible in meeting your legal needs. While the COVID-19 pandemic has forced all law firms to alter their daily practice for the betterment of their community, Colgan & Associates remains available and committed to providing you with the counsel you need to have your urgent legal matters addressed. Please call us for a no-cost phone consultation at 1-800-615-0115.