Small Law Firms

COVID-19 Usually Is No Longer An Excuse For Routine Law Office Failure

We are now over a year into the COVID-19 pandemic, and everyone has had the chance to adapt to the times.

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Many lawyers, especially litigators, are likely familiar with the ambiguous term “law office failure” from their experience practicing law. Law office failure usually refers to an attorney not being able to timely file papers or meet another deadline because of issues calendaring, tracking, or otherwise handling a matter. The concept has been traditionally applied to failing to timely file an answer, notice of claim, or other legal document, but the concept is sometimes used more broadly to refer to some kind of breakdown in the operation of a law firm due to disorganization, overwork, or other issue. At the beginning of the COVID-19 pandemic, lawyers used the virus as a blanket excuse for failing to timely file papers, meet deadlines, and satisfy other requirements of practicing law. As conditions normalize and attorneys prepare to go back to offices in the coming months, COVID-19 should no longer be an excuse for law office failure in most instances.

At the beginning of the COVID-19 pandemic, it was absolutely appropriate to use extraordinary conditions as an excuse for law office failure. In some jurisdictions, courts refused to permit filings in the early months of the pandemic, which threw deadlines and timeframes into disarray. During this time, my office was charged with filing an answer during a period in which it was literally impossible to file nonemergent documents in a jurisdiction in which I practice. I simply emailed the papers to other lawyers on the case and related that the papers would be properly filed when the electronic filing system was open to new filings again.

Moreover, it was extremely reasonable that lawyers would fail to receive legal papers that may have been served on them. Law firms needed to shut offices without much notice, and people ended up working from home for extended periods even though they did not initially expect to work remotely in the long term. Many attorneys did not have established systems in place to go to the office from time to time to check if papers had been mailed to them. Moreover, many attorneys toward the beginning of the pandemic were less likely to email courtesy copies of documents because this norm of operating during the pandemic had yet to be established. As such, it was easy for papers to be missed, and lawyers were often excused for being unable to timely respond.

Courts understood the situation that many attorneys faced, and many of the stricter parts of practicing law were relaxed in the early months of the pandemic. Timeframes during which parties needed to serve documents and complete other procedural steps needed to prosecute and defend a lawsuit were relaxed because court operations were less efficient, and it was almost impossible for normal timeframes to be followed. In addition, many jurisdictions allowed service and filing to be accomplished in new ways to account for the fact that many attorneys and court officers were working from home and could not operate under the ordinary procedures. Many attorneys may have become reliant on the fact that COVID-19 could be an excuse for failing to meet deadlines or satisfy other legal requirements. Earlier in the pandemic, there was a sense that lawyers should excuse law office failure and procedural irregularities due to the unprecedented circumstances under which attorneys were operating.

However, we are now over a year into the COVID-19 pandemic, and everyone has had the chance to adapt to the times. Lawyers should have systems in place to ensure that they check mail that comes into their office to make sure that nothing is missed if important papers are served on them. In addition, law firms have had more than enough time to standup work-from-home operations so that lawyers can be almost as efficient working from home as they were in the office. In addition, with mass vaccinations underway in this country, many law firms are planning a return to the office in the coming months, and normal operations of many legal organizations should resume in the not-too-distant future.

However, some lawyers are still relying on COVID-19 to excuse all manner of law office failure, which is not fair to some adversaries in the current environment. I heard of a case not too long ago in which a colleague filed a motion for summary judgment that was not timely opposed. The motion was eventually granted without opposition, and an order to this effect was issued.

Sometime later, the other attorney in the case related that their office had not received the papers because of law office failure due to the COVID-19 pandemic. It is unclear how this is possible since an email notice is sent to the attorney of record in this jurisdiction whenever a filing is made, but this was apparently the argument. In any event, this adversary alleged that due to the ongoing pandemic, they had not received the papers or did not have the ability to respond, and as a result, the summary judgment order should be vacated. Of course, if someone in a law firm was exposed to COVID-19 or experienced other extraordinary conditions, current circumstances may still provide an excuse for such law office failure. However, absent such circumstances, it is difficult to see how the pandemic at this stage could prevent an attorney from receiving, reviewing, and responding to motion papers.

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All told, as courts across the country have made clear, lawyers and judicial officers need to restore normal operations as the pandemic wanes to ensure that justice is properly administered. As conditions normalize, lawyers should not ordinarily use COVID-19 as an excuse for law office failure anymore since attorneys have had a chance to adequately adopt to current circumstances.

Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

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