New Normal Sets In for White-Collar Lawyers in the Virus Era

The night before the drink plans, after holding off on reminder emails as the coronavirus crisis worsened, the firm made the call. Social distancing was on, happy hour was off.

"At some point," Kaiser said, going forward with the event "seemed either dangerous or in exceptionally bad taste — or both."

Since the middle of March major U.S. law firms have largely shuttered, their lawyers and most support staff swept up in the tide of teleworking. A new normal has set in with an unknown end date, presenting indefinite delays and other challenges to lawyers grappling in their own ways with an unprecedented public health emergency.

For white-collar defense lawyers, the international travel required for investigations into foreign bribery and other corporate misconduct has been rendered virtually impossible. And in a practice that prizes in-person meetings — better to gauge a witness' credibility in an interview or take a prosecutor's temperature — virtual communication has become commonplace.

With the grace of a solid WiFi connection, colleagues who were once down the hall are now reachable only via videoconferencing. The teleconferencing service Zoom has emerged as an essential link for work life.

"Actually interviewing people as part of an internal investigation, appearing before the government in whatever capacity — that is just not something that lends itself to remote work," said Sandra Moser, a partner at Quinn Emanuel Urquhart & Sullivan who previously headed the fraud section in the Justice Department's criminal division.

"Frankly, that's why people who are in public service report to work every day," she said.

In interviews, lawyers described the Justice Department and other government agencies as considerate of the new challenges companies are confronting in the coronavirus crisis. Those agencies have found themselves in the same position as their defense bar counterparts, broadly encouraging or even requiring employees to work from home.

One lawyer said a client's FBI interview was canceled, while others pointed to delayed court proceedings and in-person meetings turned into teleconferences.

"So far, it's been my experience that the government's been very understanding and accommodating in view of the current circumstances. They're under the same constraints and face the same challenges as those working outside of government," said Matthew Miner, a partner at Morgan, Lewis & Bockius who served until last year as a deputy assistant U.S. attorney general in the Justice Department's criminal division.

In response to the coronavirus' spread, several law firms took steps to prepare for office closures, arranging test-runs for lawyers and staff to work from home and outfitting them with technology to do so. The outbreak, which the World Health Organization declared last week to be a global epidemic, also spawned new work with clients. Along with assistance with crisis management, some firms have been consulted about addressing fraudulent activity exploiting the public health crisis.

On March 16, U.S. Attorney General William Barr directed prosecutors to prioritize investigations of scammers and others seeking to fraudulently profit from the pandemic.

"Sadly, there are going to be people who try to take advantage of others in these distressing times. That's definitely coming, unfortunately. It's the history of the world," said Gibson, Dunn & Crutcher partner Joel Cohen, a leader of the firm's white-collar defense and investigations group. "The risks for many legitimate businesses is that they might become inadvertently associated with others who are offering a wide range of products or ideas that skirt around the edges of propriety."

With their work on internal investigations, lawyers said they have been forced to weigh whether interviews and other efforts should proceed or be delayed to a later date — considerations that come against the backdrop of uncertainty over when the coronavirus crisis will end.

"There are a handful of situations that you really feel like the person is essential, and that key witness is one you really want to look in the eye," said Jay Holtmeier, a partner at Wilmer Cutler Pickering Hale and Dorr and leader of the firm's anti-corruption practice. "Some of those things are going to have to be put on hold a bit. Some others will not be put on hold but proceed in the second-best way, by videoconference."

"As we all know," he added, "those are not ideal situations. "But if it has to be done, it has to be done."

Amy Jeffress, an Arnold & Porter Kaye Scholer partner who previously led the national security division of the U.S. attorney's office in Washington, said videoconferencing necessitated by the coronavirus outbreak "still doesn't capture the dynamics of meeting someone in person or face-to-face."

"It's not ideal. What we're doing is really deciding whether this is a matter that can wait or is this one we really need to go forward with, even with the limitation of not meeting in person," she said. "But we don't know how long this delay is going to last. We may wait a few weeks and decide to move ahead."

Ropes & Gray partner Joshua Levy in Boston, a leader of the firm's global litigation and enforcement practice, said there was a bit of an early "scramble" among lawyers facing immediate challenges balancing their personal and professional lives. Levy, like many lawyers across law firms and practice groups, is working from home.

Lawyers will adjust, at least for now, to using video technology. Levy predicted that the new dynamic would make the lives of white-collar lawyers harder but not impossible.

Missing the Camaraderie

Within U.S. law firms, lawyers are embracing video meetings over teleconference. On the line is continued camaraderie.

Firm leaders at Gibson Dunn have encouraged lawyers and other staff to communicate when possible with Zoom or other technology offering face-to-face communication, albeit with the help of the Internet.

"We want to try to encourage personal contact as best we can, even if we can't be in the same room," Cohen said. "We don't have to do it by video, but we think it will be helpful to maintain that connection."

At KaiserDillon, the would-be host of the March 11 happy hour, the coronavirus outbreak has given rise to an optional — and virtual — lunch over Zoom.

"It's jarring to miss the camaraderie, or those regular social interactions. Having the virtual lunch kind of helps with that. We often have people traveling, so in some ways it doesn't seem that different to be calling people who are remote and working with people who are in different parts of the country," Kaiser said.

"The real question we have is how long this is going to last and what this looks like if it lasts longer, a few weeks or months, and what that starts to look like if people in the firm get sick and how we work with that."

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Ryan Barber, based in Washington, DC, covers government affairs and regulatory compliance for ALM. He can be reached at [email protected] or on Twitter @cryanbarber.