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Judicial & Bar Conference Focuses on Representation During Pandemic

April 26, 2021

By Jeremy Conrad

The second day of the biennial Judicial & Bar Conference, held virtually this year on April 22–23, continued the discussion of the pandemic’s impacts on legal practice with sessions examining the positive and negative effects on client representation under such unusual circumstances. Regardless of a client’s income level, attorneys were committed to preserving clients’ safety, ensuring quality representation, and reimagining the delivery of services so that their needs were appropriately met.

A keynote presentation by DeMaurice Smith, executive director of the NFL Players Association, focused on efforts he made to ensure that players received adequate protection. Smith was unequivocal about the nature of his organization as a labor union and the focus of his representation on the well-being of players. “I’m not there to protect football. I’m not there to perpetuate the game,” he said.

Despite a significant amount of resistance from team owners, Smith was successful in ensuring that players were entitled to daily testing and to accommodations that helped limit contact that could transmit the virus. He says the efforts paid off. “We did not have a single in-game transmission of COVID-19 … not one,” he remarked. Off-field transmissions were also well below national averages, something he says couldn’t have come about without a tremendous amount of diligence.

He related how his own tough bargaining position helped secure the conditions his clients needed. Their contracts included a force majeure clause that he says let them play hardball, threatening not to play at all if accommodations weren’t met. Those tough demands weren’t without a degree of risk, however. Smith noted that players have, on average, a three-and-a-half-year career. Losing a year of play, in that context, could jeopardize a third of a professional athlete’s salary.

The nonprofit and pro bono clients of the city’s legal services providers faced their own challenges. Two breakout sessions examined the opportunities and problems facing those who serve low-income individuals in a virtual setting. Panelists also addressed a number of misconceptions relating to pro bono representation during the pandemic.

The first of these misconceptions is that moratoria in the courts mean that pro bono representation isn’t needed. Sara Tennen, executive director of the DC Volunteer Lawyers Project, reminded attendees that not all matters are subject to moratoria, pointing out that the increased isolation imposed by the pandemic has resulted in an increase in the need for domestic violence representation. “All of the things we did as a community to keep ourselves physically safe during the pandemic were really a nightmare for a domestic violence victim or an at-risk child,” she said. As other supports were cut off, the remote delivery of advice and representation provided an important counter to circumstances that further isolated these vulnerable parties.

Even individuals contending with issues that were subject to moratoria, such as eviction, benefited from access to pro bono counsel. Lise Adams, the D.C. Bar Pro Bono Center’s director of legal services for individuals and families, said that the need for representation in landlord–tenant cases is both continuing and profound. She described the establishment of the Landlord Tenant Legal Assistance Network (LTLAN), a collaborative effort providing legal advice and assistance over the phone. “We receive dozens of calls every few hours simply because there is so much misinformation out there,” she said. The group has fielded more than 1,800 calls since its organization nine months ago.

Adams pointed out that while there is a moratorium on evictions, many people still need representation in lawsuits related to housing conditions. She said there is also important work that can be done under D.C. Council’s new Fairness in Renting Emergency Amendment Act of 2020, which allows for the sealing of eviction records under certain circumstances and can help empower beneficiaries by helping them find and qualify for affordable housing.

Though the pandemic created obstacles, many found opportunities to rethink the delivery of services and expand the kinds of assistance they offer. Paul S. Lee, pro bono counsel at Steptoe & Johnson LLP, discussed several areas in which his firm expanded efforts. “There were a whole lot of … new opportunities for our attorneys based on the need.” The firm redoubled its efforts to staff domestic violence clinics, used what it learned from helping business clients with the Paycheck Protection Program to benefit pro bono clients, and partnered with the Legal Aid Society to provide assistance in navigating complicated pandemic-related unemployment projects.

As the world approaches normality, many are considering how some of the changes brought on by the pandemic might be beneficial moving forward. Smith says that the lack of pre-season training gave lie to the myth that it was vitally necessary for a successful and competitive football season. He says that a reduction in between-season injuries benefited teams and players. On a personal note, he says that in the future he’ll travel less since the past year proved that he could serve his clients’ needs effectively in a way that still let him spend time with family.

Those in the pro bono sector also saw value in changes brought on by necessity. Collaborative efforts, as wells as systems that allowed practitioners to provide assistance remotely, may point the way for a future model of representation that is more adaptable.

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