Pa. Office of Counsel OK's AOPC Guidance Saying Law Offices May Stay Open on Restricted Basis

The Administrative Office of Pennsylvania Courts on Friday laid out guidance saying law firms can stay open on a restricted basis so lawyers can continue to perform functions that courts have deemed to be “essential.”

The guidance, which has been approved by the Pennsylvania’s Office of General Counsel, clarifies an order that Gov. Tom Wolf issued late Thursday closing “non-essential” businesses. Wolf’s roiled some lawyers who believed their should be a carve-out for legal services.

The guidance stated that “In the view of AOPC, restricted access to law offices and facilities by legal professionals, staff, and clients is permitted to the degree necessary to allow attorneys to participate in court functions deemed essential by a president judge per the Supreme Court’s order of March 18, 2020, or similar federal court directive, so long as social distancing and other mitigation measures are employed for the protection of lawyers, staff, and clients. Pursuant to the governor’s order, all other business must be conducted remotely; necessary retrieval of files or other materials should be accomplished expeditiously.”

On Sunday, the Supreme Court used the modified language to toss out a legal challenge to Wolf’s order as moot.

The guidance comes as the entire legal community struggles to help contain the spread of the coronavirus, while continuing to provide services for clients and abide by constitutional mandates.

On Thursday, Wolf ordered that all law firms and other legal services close their physical offices, as part of a larger order specifying that non-life-sustaining businesses must close to prevent further spread of the new coronavirus. In the order, Wolf expanded on his previous order, which said all nonessential businesses must close.

He included a list of examples, which expressly categorizes “legal services” as non-life-sustaining, along with many other professional services.

“Enforcement actions against businesses that don’t close will begin Saturday and could include citations, fines & license suspensions,” Wolf said in a tweet.

The order, however, quickly caused concern in the legal community.

After the mandate was issued, Philadelphia attorney Theodore “Ted” Simon wrote a letter to both Wolf’s office and the Administrative Office of Pennsylvania Courts, stressing the constitutionally mandated roles that attorneys play in the judicial system. The letter further asked that the governor carve out an exception to allow attorneys to perform “constitutionally mandated services.”

“While perhaps unintended, such a designation fails to recognize the constitutionally mandated role of criminal defense lawyers, both public and private pursuant to the Fifth and Sixth Amendment to the U.S. Constitution and the similarly corollary provisions of the Pennsylvania Constitution including but not limited to Article 1, Section 9,” Simon said in the letter.

William C. Costopoulos of Costopoulos, Foster & Fields also filed a petition for emergency injunction with the Supreme Court Friday seeking to stay Wolf’s order. The petition said the order was “so broad and sweeping, it is manifestly unconstitutional,” and that it could cause irreparable harm.

After the Office of General Counsel approved the AOPC’s guidance on Friday, Costopoulos said the AOPC’s guidance was “exactly what we were asking for. I believe it is dispositive.”

Simon also said the new guidance showed Wolf recognized the constitutionally mandated roles that attorneys play.

“I appreciate that Governor Wolf modified the effect of his business closure order, now permitting attorneys to perform such functions as deemed essential by the President Judges of each county,” he said.

Although the Supreme Court’s decision on Sunday unanimously dismissed the legal community’s challenges as moot, the per curiam order also denied all other efforts to challenge Wolf’s order. On those issues, the justices were divided 3-4. Justice David Wecht wrote a dissenting opinion, urging the governor to modify the order so people could continue purchasing firearms, albeit in limited ways. Justice Christine Donohue and Justice Kevin Dougherty joined Wecht’s opinion.

Wolf’s order came the day after the Pennsylvania Supreme Court ordered that all courts in the state be closed at least through the beginning of April in an effort to fight the spread of the coronavirus.

Over the past week, lawyers in the state have been struggling to keep themselves and their clients up to date as one by one courts across the state began to close or alter their services to mitigate the virus outbreak.

The order allows courts to continue operating certain “essential functions,” including emergency bail review, bench warrant hearings, juvenile delinquency detention, juvenile shelter hearings, protection from abuse hearings, emergency guardian petitions, civil mental health reviews and “any other function deemed by a president judge to be essential consistent with constitutional requirements.” It also suspended all new jury trials, said jurors no longer have to report in, and postponed all calendars, scheduling notices, subpoenas or other court matters compelling lawyers or litigants to appear. The order also encouraged the use of enhanced videoconferencing whenever possible.

According to attorneys, the Supreme Court’s order was welcomed guidance, but they expect numerous questions to linger as the efforts to stop the spread of the coronavirus continue.