COVID-19 and the impact on NH attorneys

Many readers of this column are New Hampshire business owners who, from time to time, use the services of New Hampshire lawyers, and a few readers are themselves New Hampshire lawyers.

The ideas in the article are derived in part from my discussions with fellow New Hampshire lawyers, but also from the American Bar Association Journal, a major national legal journal whose August/September 2020 issue is largely devoted to the subject of this column.

Lawyers are working at home

Because of social distancing, most New Hampshire lawyers and their staff assistants, like people in many other fields, are now working largely or entirely at home, exchanging documents by e-mail and meeting with one another and with clients by Zoom or other online apps. Hackers are a worry in this situation, but one that can be dealt with; and many lawyers are finding that they much prefer the privacy and freedom from distractions that they get from working at home and their greatly increased family time.

 

I strongly suspect that when the pandemic is finally under control, legal work at home will continue for many reasons, including those just listed but also because, for many law firms, it will mean major savings in office rent.

As just noted, the social distancing restrictions of the pandemic have had a major impact on client meetings. But many lawyers and clients are discovering that meetings via Zoom are just as satisfying and effective as face-to-face meetings and can also save considerable travel time.

The use of Zoom meetings rather than face-to-face meetings will undoubtedly continue in the post-coronavirus era. In that era, many lawyers will offer their clients a choice between the two types of meetings, and many clients will choose Zoom.

Economic impact of pandemic on NH lawyers

To save legal fees in a very difficult economy, many New Hampshire residents who might otherwise have hired lawyers for diverse purposes, including not only business matters such as contract disputes but also personal matters such as divorces and adoptions, are not hiring them, and this is causing major employment and economic issues for many law firms, including even large international ones.

 

However, there are some types of lawyers who are thriving because of the pandemic and who will thrive even more in the post-coronavirus era. These include, above all, bankruptcy lawyers.

In addition, some types of practice that are presently on hold are likely to become more active than ever – for example, business start-up practice, since, in the post-coronavirus era, many new businesses will be formed by founders who don’t want to form them now.

There are economic issues, in my own two fields of practice — namely, LLC formation practice; and business restructuring practice to maximize the major annual federal income tax deductions available to business owners under Internal Revenue Code section 199A.

For example, comprehensive planning, negotiation and drafting of operating agreements among the members of multi-member LLCs is unavoidably complex and thus can trigger major legal fees. However, for founders of multi-member LLCs who want basic protections and are willing to forego comprehensiveness, lawyers are developing “LLC Lite” operating agreements (a phrase I’ve borrowed from attorney Paul Alfano). Similarly, lawyers are providing section 199A shortcuts for business clients, but warning them, as they must, that these shortcuts have their downsides.

Impact of pandemic on litigation

Social distancing has also had a major impact on New Hampshire litigation procedures, including law-office depositions and in-court procedures such as hearings and trials, and the New Hampshire Supreme Court has issued several rules and guidelines to address this impact. I suspect that because these rules and guidelines provide so many conveniences and cost savings for the courts, lawyers and clients, many of them will remain in force in the post-coronavirus era.

New Hampshire law reform

Finally, there is the issue of legal reform. The legal system in New Hampshire, as in most or all other states, involves many elements of unfairness both to people of color and to whites, including, especially, unfairness to the poor. These include, for example, bail requirements and indictment and sentencing practices. It is possible – and we must hope – that the combination of the pandemic and the Black Lives Matter movement will lead to major long-term legal reforms that will benefit New Hampshire victims of legal system discrimination.

Among other major legal innovations, I think we need to make restorative justice broadly available in New Hampshire as an alternative to incarceration, and we need to permit non-lawyers to handle restorative justice proceedings and, arguably, many other types of proceedings presently requiring lawyers. (Restorative justice is a process in which persons charged with serious crimes meet with their victims, if the victims are willing to do so, to develop alternatives to incarceration as remedies to criminal misconduct.)

John Cunningham is a Concord tax and businesses lawyer and estate planner. He has published Drafting Limited Liability Company Operating Agreements and Maximizing Pass-Through Deductions under Internal Revenue Code Section 199A. Both are the leading books in their fields. If you have business or tax questions you’d like addressed in this column, call John at (603) 856-7172 or e-mail him at [email protected]

Janelle B. Smith

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