COVID Advice on the Fly? Think First

September 16, 2020

The pace at which laws and regulations are changing due to COVID-19 can make your head spin.  Efforts to keep abreast of the changing regulatory landscape can be daunting. Local, state, and federal government have enacted or adopted measures to address the pandemic and its economic fallout.  In North Carolina, you have regulatory agencies and occupational licensing boards scrambling to adopt amended rules or provide guidance to their licensees.  State and local courts have adopted amended filing schedules and deadlines, as well as amended procedures for, heretofore, in-person proceedings.  The governor continues to issue executive orders; the general assembly responds with legislation. There’s changing guidance from the IRS on deadlines, retirement distributions, tax relief, among others.  OSHA has issued several Temporary Enforcement Guidance Memoranda. There is legislation affecting small business loans, paid sick leave, insurance claims, healthcare, and the list goes on and on.   In addition, it seems that developments in the law related to COVID change almost daily.

How can you and your firm keep track of the dizzying array of COVID-related changes in the law and properly advise your clients?  Because the changes touch so many different areas of the law (employment, business, tax, healthcare, regulatory, etc.), it is a challenge, especially for small firms or solos, to stay abreast of or have confidence that they have identified the most recent guidance on the vast array of changes to the law.  Larger law firms and corporate legal departments may have it easier.  They may elect to assign staff lawyers to focus on and track COVID-related changes in the law or to coordinate among the different practice groups in the firm or in-house legal departments to track, in a comprehensive way, changes in the law which may affect their clients.

For small firms or solos, knowing what you don’t know is key.  If you are a corporate or transactional lawyer, your small business client may look to you for advice about paid sick leave policies, OSHA compliance issues, tax benefits or payroll protection, among others.  If your practice is not ordinarily focused on these aspects of regulatory, employment, or tax issues, now may not be the time to figure it out.  More and more lawyers are dabbling in areas of the law not ordinarily in their wheelhouse, especially since the economic downturn.  I have written articles and given CLEs on the risks (ethical and liability) associated with dabbling in unfamiliar territory without taking the time, or assembling the necessary resources, to become competent in that area of the law.  The rapidly changing COVID-related modifications and temporary changes to existing laws exacerbate these risks.

Before advising a client on unfamiliar COVID-related issues, think first.  Advise the client that the issue is not in your wheelhouse.  If you would be willing and have the time to spend researching the issue, tracking the changes to the legal landscape, and possibly consulting with someone else with expertise in the area, then you should advise the client of what would be necessary for you to be able to appropriately advise them.  If you plan to charge the client to become competent in this area, you should provide some estimate of what it may cost to get to that point so the client can make an informed decision about representation.

Finally, given the fast pace at which changes are taking place, you should stay on top of continuing developments relative to the issue presented, even after you have provided advice.  Furthermore, you should advise the client whether the laws, regulations, or guidance appears to be temporary or permanent, if possible. Just know that in the time it takes to become acquainted with the COVID-based developments, things could change again.

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