Pandemic teaches tough legal lessons

WILKES-BARRE — Attorney David Schwager, president of the Pennsylvania Bar Association, Tuesday said that during the ongoing COVID-19 pandemic, many Pennsylvanians experienced disruptions in their access to lawyers and the courts at a time when many needed them the most.

“As a result, we have learned that the power of technology is key to maintaining the legal system and serving Pennsylvanians in need of legal services,” said Schwager, a resident of Kingston and a partner with Chariton, Schwager & Malak.

So to ensure that Pennsylvania is prepared in the event of another public emergency, Schwager, in his role at the Pennsylvania Bar Association, decided to bring together representatives from the legal community and the judicial system to form the Joint Task Force on Continuity of Delivery of Legal Services.

Schwager said dozens of lawyers and judges spent the past nine months taking a hard look at the lessons learned during the pandemic and what improvements can be made now and for the future.

Schwager explained that many courts and law firms just weren’t prepared to “flip a switch” and seamlessly go from before the pandemic to coping with the restrictions brought by the pandemic.

“In the beginning, most were grounded to a stop,” Schwager said. “So we went about to examine what needs to be fixed should this occur again in the future to assure an easier to transition.”

In the task force’s recently released report, Schwager said many of the recommendations focus on strategic use of technology, making sure that the public has access to pertinent technology and that personnel have the proper training to use the technology.

“At the beginning of the crisis, not all courts, government offices and law firms were prepared for the remote practice of law, remote court proceedings and other legal processes,”Schwager said. “While many courts and government offices in Pennsylvania have the technology to provide secure electronic filing and video capabilities, many still do not.”

Schwager said the report recommends that the State Legislature, the courts, the organized bar and the general public work together to find a way to establish a uniform electronic case filing system for Pennsylvania. He said electronically available records ensure continuous availability of access to documents essential to handling legal matters when physical access to courthouses or government offices is limited.

Schwager added that counties and filing offices that already had electronic filing and online access fared better during the pandemic than those without. While some other technology solutions may be as simple as more effective use of available resources, Schwager said many other technology solutions will require budgetary changes at the state and county levels and may require federal participation to accomplish the necessary changes.

Schwager said the Pennsylvania Bar Association intends to continue its work by monitoring changes in procedures, surveying the legal community to determine how procedures are working, studying the results of those efforts and making additional recommendations that may be needed to assure the continuity of delivery of legal services in a possible future state of emergency.

Top recommendations

• Any future declaration of emergency that suspends all but essential services must recognize that legal services are indeed “essential.”

• There must be meaningful statewide leadership and accountability to enforce health and safety standards uniformly and consistently on a statewide basis and should not be left to the discretion of individual courts or judges.

• We must work towards the establishment of a uniform electronic case filing system for Pennsylvania.

• Continue to encourage the use by the courts and administrative agencies of advanced communication technologies to conduct proceedings when appropriate and practical, consistent with constitutional and statutory requirements. Appropriate training of court and other personnel is critical.

• To attack the backlog in civil cases, enhanced use of alternative dispute resolution methods should be encouraged.

• Courts and county bar associations should explore options for making space and technology resources available to pro se litigants.

Schwager established the task force last summer and it was chaired by Judge Thomas I. Vanaskie (retired, U.S. Third Circuit Court of Appeals).

The 33-member task force includes lawyers serving private and public roles, as well as representatives from the PBA, Pennsylvania Association for Justice, Pennsylvania Defense Institute, Pennsylvania District Attorneys Association, Pennsylvania Association of Criminal Defense Lawyers, Public Defender Association of Pennsylvania, Pennsylvania State Conference of Trial Judges, Superior Court of Pennsylvania, Commonwealth Court of Pennsylvania, law schools, and Pennsylvania Legal Aid Network.

“Our legal system and our constitutional right to due process are fundamental aspects of our national identity,” Schwager said. “It is in everyone’s best interest to be certain that all aspects of the judicial system are sufficiently funded and that the public has equal access to justice.”

Schwager said the Pennsylvania Bar Association is committed to working with all branches of government and legal organizations to put into place and to reinforce procedures that will allow seamless access to justice for the remainder of the pandemic and any future emergency.