Memo from the S.J. Quinney College of Law Career Development Office, 2020-06-02 : COVID-19, the 2020 Recession, the Legal Job Market, and SJQ

Memo produced by James Holbrook from the S.J. Quinney College of Law Career Development Office "for the Dean of the College of Law about Covid disease, coronavirus vaccines, the economy and employment."

COVID-19, the 2020 Recession, the Legal Job Market, and SJQ To: Dean Elizabeth Kronk Warner Date: June 2, 2020 From: S.J. Quinney College of Law Career Development Office Table of Contents (new material highlighted in yellow) Executive Summary .................................................................................................2 1. COVID-19, Physical Distancing and the 2020 Recession .................................3 2. COVID-19 Legal Issues in Higher Education ...................................................5 3. The Recession’s Effects on the Legal Job Market .............................................6 4. Effects on SJQ Operations and Law Student Placement ...................................7 5. CDO COVID-19 /Recession-Related Activities ................................................7 6. Additional COVID-19 Recovery-Related Resources ........................................9 Executive Summary COVID-19 is a potentially fatal respiratory pandemic. The physical distancing measures taken to slow the spread of the disease have caused the greatest U.S. and worldwide recession since the Great Depression. The disease and the recession together have affected our law school’s operations, Bar admission in Utah, and law firm programs and hiring. As of today, the COVID-19 death toll exceeds 100,000. The Institute for Health Metrics and Evaluation (“IHME”) presently estimates the death toll in the U.S. to be over 137,000 by August 4., 2020. The CDC Director and the Utah State Epidemiologist have warned there will be a second wave of coronavirus this fall and winter at the same time as the annual flu season. COVID-19 and seasonal flu occurring together could overwhelm the U.S. healthcare system. Though transmission of the disease is diminished by stay-at-home physical distancing, many states (including Utah) are loosening their restrictions thereby increasing the risk of transmission of the coronavirus. At present, there is no vaccine or cure for COVID-19. Remdesivar, an experimental antiviral drug recently approved by the FDA for emergency use with hospitalized COVID-19 patients, shortens the average hospital stay from 15 to 11 days, but does not cure patients. Health experts believe a COVID-19 vaccine will be available by mid-2021. Stock markets fell more than 30% from their highs in mid-February and have been volatile since, with the Dow down from nearly 30,000 points and trading in a range near 24,000 points. The Congressional Budget Office (“CBO”) expects the federal budget deficit to be $3.7 trillion for fiscal year 2020 ending September 30. The U.S. economy shrank at an annual rate of 4.8% in the first quarter of 2020. Economists forecast that the economy would shrink at an annual rate of 30% in the second quarter of 2020. Since mid-March, over 40 million Americans have filed for unemployment benefits and unemployment trust funds in many states are nearly depleted. Many economists believe the nation is headed into a deep prolonged recession, in which many nowclosed companies will not reopen, leaving millions of Americans unemployed. Roughly 70% of the U.S. economy is driven by consumer spending for goods and services. People who are unemployed have no income or savings to spend. People who have income or savings have nowhere to spend their money except for online purchases. With the loss of value in the stock market, many people will be reluctant to retire this year and will work until they can replace their lost retirement savings. This will complicate and prolong economic recovery. Big law firms in Salt Lake City and nationally are cutting salaries to partners and associates (“lawyers”) and staff, delaying bonuses to lawyers, furloughing lawyers, buying out lawyerpartners, laying off lawyers and staff, freezing new hiring, and canceling summer associate programs. Our law school, like most other law schools, went online and had credit/no-credit grading for Spring Semester and has postponed Summer OCIs to January 2021. The Utah Supreme Court has waived the Bar exam for this year’s law graduates and adopted diplomaprivilege Bar admission requiring 360 hours of Supervised Practice. On May 25, 2020, the University of Utah announced it was moving to in-person operations for Fall Semester 2020, with physical distancing and personal and workplace hygiene requirements. Some health experts believe COVID-19 is here to stay, even after we get a safe and efficacious vaccine. Experts call such diseases “endemics”. 2 1. COVID-19, Physical Distancing and the 2020 Recession To slow the spread of COVID-19, the federal government issued physical distancing guidelines, and state and local governments imposed stay-at-home restrictions and closed non-essential businesses. This caused millions of Americans to become unemployed, which had an immediate adverse effect on the American economy, which in turn has had a significant adverse effect on legal business, law firms, and legal hiring. The International Monetary Fund predicted “a recession at least as bad as during the global financial crisis [of 2008-2009] or worse” this year. Economists at Morgan Stanley expect the U.S. economy to contract at an annualized rate of 30% in the second quarter of 2020. U.S. bankruptcy filings in the first quarter of 2020 were the most since 2009. The St. Louis Federal Reserve predicted U.S. unemployment in 2020 could top out at 32.1% or 52.8 million people. COVID-19 illness and deaths already have occurred in China and South Asia and are occurring now in Africa and South America. The International Monetary Fund forecast that the global economy will shrink by 3% in 2020. Fareed Zakaria said, as severe as the initial shock of COVID-19 has been, “we are in the early stages of what is going to become a series of cascading crises, reverberating throughout the world.” Global economic paralysis is sure to follow, as are the possibility of government defaults in other countries, severe economic crises in the developing world, and collapses in revenue in OPEC oil-producing countries. redness of the mouth and tongue, redness of the palms and soles of the feet, and joint pain. 3 Most cases of COVID-19 are mild. However, people with certain preconditions are more vulnerable to the disease and are more likely to experience more severe symptoms. Vulnerable populations include: the elderly; people with weakened immune systems; people with hypertension, obesity, and diabetes; and people with cancer and cancer survivors. A study in England found that people with cancer and COVID-19 who were on chemotherapy had a 28% death rate: https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)31173-9/fulltext. Nursing homes and assisted care centers have been hot spots for COVID-19 deaths. Other hot spots are places where it is not feasible to practice effective physical distancing. These include meat processing and packing plants and jails and prisons. Over 40 million Americans are unemployed. The most recently available data show that Utah’s unemployment rate in April 2020 was 9.7% compared to the national April unemployment rate of 14.7% The rate for May will be much higher when those data are available. Some economists believe the real unemployment rate is now close to the Depression-era peak of 25%. People of color are at a disproportionately greater risk of dying from COVID-19 than are whites, because they are more likely to have the preconditions that make them more vulnerable to having severe symptoms. African Americans are 13.4% of the U.S. population, but they have incurred 60% of COVID-19 deaths in the country. People of color also are at a disproportionately greater risk of COVID-19-related unemployment than whites. An academic analysis published this week shows that the number of working African American business owners plummeted more than 40% when the economy screeched to a halt, cratering demand for beauty salons, day-care centers and transportation services. A previous study found that 6 in 10 black and Latino households don’t have enough savings to cover three months of expenses without income, compared to 3 in 10 white households. In Washington Post polling released early this month, 20% of Hispanic adults and 16% of blacks reported being laid off or furloughed since the virus hit, compared with 11% of whites. In Utah, the coronavirus pandemic is more lethal and spreading far faster among communities of color, with minorities being infected, hospitalized and dying at higher rates per capita than the state’s predominantly white population. On April 14, 2020, there were 2,412 COVID-19 cases in Utah, and people of color disproportionately accounted for 859 of them, with Latino and Pacific Islanders the most affected. For example, Utah is 13.9% Latino, but they made up 37% of COVID-19 cases in Utah as of May 6, 2020. The Navajo Nation in Utah, Arizona, and New Mexico has one of the highest numbers of COVID-19 cases and deaths per capita in the U.S. The World Health Organization has warned of a second peak of COVID-19 and cautioned against scaling back restrictions too quickly. 4 2. COVID 19 Legal Issues in Higher Education 1 Tuition and Fee Refund Class Actions National class-action cases have been filed seeking to recover the difference between tuition paid for in-person courses and the alleged lower value of the substitute online courses provided instead. These cases assert claims of breach of contract, unjust enrichment, and (in some cases) conversion. Some cases are pending in federal courts and others in state courts. Motions to dismiss have been filed in many of the cases but have not yet been ruled on. Threshold defenses include: no jurisdiction; improper venue; and no necessary prerequisites were satisfied before suing public colleges and universities. Specific defenses include: no contract; no specific promise; there is no cause of action for an inadequate educational experience; and lack of harm. There also are class-certification requirements which must be met, and class-action defenses which can also be asserted. It is important not to devalue online education in comparison to in-person education. Health and Safety Liability Issues It is important not to overpromise health and safety. There is potential liability for health and safety when in-person courses reopen in the Fall. What is considered best practices may differ for (1) students (who are the least likely to be seriously harmed by COVID-19 infections), (2) faculty and staff (who may have moderate risk and some may have preexisting high-risk factors such as age, diabetes, hypertension, and obesity), and visitors and guests. Liability theories include: (1) inadequate information provided to building occupants; (2) poor design of mitigation measures; and (3) bad implementation of mitigation measures. The effort and hours spent in planning, designing, and implementing mitigation measures should be documented. Mitigation protocols should address: access to the building; physical distancing requirements in the building; coronavirus testing (if any, such as temperature taking); cleaning the building; personal hygiene requirements in the building; monitoring; reporting; and requiring quarantine of exposed persons. The greatest risk is infection of others by asymptomatic spreaders who do not know they are infected. Requiring building occupants to sign written waivers, releases of legal liability, or assumptions of risk probably is not an enforceable defense. If the school provides PPE or cleaning supplies, the school’s actions must be consistent with the manufacturers’ warnings and instructions, which create a legal standard of care for their use. 1 See, e.g., COVID-19 and the Education Industry, Parts I (May 28, 2020), II (June 3, 2020), and III (June 10, 2020), Ballard Spahr. 5 COVID-19 Legal Immunity Democrats on House and Senate education committees are pushing back against pleas by colleges and universities for protection for liability if students or staff contract coronavirus on campus: https://www.bloomberglaw.com/exp/eyJjdHh0IjoiQ1ZOVyIsImlkIjoiMDAwMDAxNzItNjA4N C1kOTMxLWFiZmUtNmI4YzAxYmUwMDAxIiwic2lnIjoiUFJaUjZQVGlzcVU1MWxMUGV yY3V6dnp4bWFFPSIsInRpbWUiOiIxNTkwNzc1NDIyIiwidXVpZCI6IllKNFlOSHQ1T00yL2d 0S2d3akRqS0E9PXV4YUE2aE1LK05QcWczZldBNHduL2c9PSIsInYiOiIxIn0=?usertype=Exte rnal&bwid=00000172-6084-d931-abfe6b8c01be0001&qid=6915181&cti=LSCH&uc=1320028559&et=SINGLE_ARTICLE&emc=bcv nw_cn%3A4&bna_news_filter=true. Utah Code Ann. §78B-4-517 provides that “a person is immune from civil liability for damages or an injury resulting from exposure of an individual to COVID-19 on the premises owned or operated by the person, or during an activity managed by the person.” “Person” is defined under Utah Code Ann. §68-3-12.5 and includes “(c) an institution” and “(k) any other organization or entity.” Coronavirus Vaccination Survey A new poll shows that only about half of Americans say they would get a COVID-19 vaccination when a vaccine is developed. Overall, 49% of adults say they would be vaccinated, 20% said no, and 31% were unsure: https://apnews.com/dacdc8bc428dd4df6511bfa259cfec44. African Americans, Hispanics, young adults and Republicans are less likely than others to say they would get vaccinated. Coronavirus Super-Spreading Study In a recent preprint, colleagues at the London School of Hygiene and Tropical Medicine show that some people infect many others while others don’t spread the virus at all. Probably 10% of coronavirus infections cause 80% of the spread of COVID-19: https://www.sciencemag.org/news/2020/05/why-do-some-covid-19-patients-infect-many-otherswhereas-most-don-t-spread-virus-all. 3. The Recession’s Effects on the Legal Job Market A group of Yale law students has warned of recession-caused gender inequity in Big Law due to the COVID-19 pandemic’s effects on the women and caregivers in their firms. and diversity advocates have expressed fear that history could repeat itself. Prioritizing commitment to diversity in law firms is critical during the COVID-19-related recession because women and communities of color are disproportionately impacted: INSIGHT: Mentoring During Covid-19 Is More Critical Than Ever. Recent local anecdotal employment information includes: • The Salt Lake City office of Stoel Rives recently cancelled its summer associate program. 6 • The Salt Lake City law firm Christensen & Jensen has a summer associate program with three rising 3Ls working remotely this summer. 4. Coronavirus Effects on SJQ Operations and Law Student Placement About a third of the nation’s law schools have already announced plans to open in-person beginning this Fall semester: https://www.law.com/2020/05/27/doused-with-a-bottle-of-bleacha-vision-of-how-law-schools-will-reopen-in-the-fall/. As part of Utah’s recovery efforts, Governor Herbert started moving Utah into the "Yellow" lowrisk recovery phase beginning May 16, 2020. The University moved into its “Orange” operational level on May 11th. The Utah System of Higher Education (USHE) has organized a special USHE COVID-19 Task Force that is actively planning for future operations in a way that protects the safety of students, faculty, and staff. What this means for SJQ: • • • • • • • • Summer classes will be held entirely online. Students will not return to campus during the summer. Those telecommuting should continue to do so. Anyone who has an immediate or essential need to come into the law building should make an appointment through [e-mail]. To ensure the health and safety of the few individuals working on-site faculty and staff should not walk into the building without an appointment. Individuals needing items from the building should submit a ticket with [e-mail] and a member from the SOS team will arrange curbside pick-up. Anyone who enters the law building must wear a facemask and gloves, make the visit temporary, limit travel within the building and stay out of areas where operations staff are working (the mailroom and loading dock area). There are possible legal and privacy issues involved in tracking health information of people who come into or work and learn in the law building: This is especially true of contact tracing of people who have come into contact with individuals who have been infected with the coronavirus: tracking systems. 5. CDO COVID-19/Recession-Related Activities To respond to the effects of COVID-19, the SJQ CDO is engaging in many recession-related activities, including: • CDO staff Zoom conferences on MWF at 11:00 am • Weekly CDO recession/economic-analysis memoranda to the SJQ Dean • Daily coordination with the SJQ executive team • Advising students about: grading policy impacts; job postings; FAQs; curricular advice; online interviewing best practices; summer jobs in the age of COVID-19; effects on 7 graduation ceremonies, summer school, and the deadlines in the Utah Supreme Court diploma-admission order • Coordination with Andrew Braxton about Supervised Practice opportunities for 2020 Graduates • Online student engagement activities • Student communications: student surveys; individual student outreach calls • Employer communications: employer surveys; employer outreach calls, especially about hiring plans and the benefits of the Utah Supreme Court diploma-admission order • In a separate memorandum, the CDO has identified issues to be discussed in determining how in-person operations can be responsibly conducted at our law school • The CDO is evaluating how to grow the MLS program; mini-credentialing live and taped courses (and whether these courses can/should be offered as MLS electives) • The CDO has begun individual exit interviews with SJQ 2020 grads to obtain employment information to be reported to the ABA and NALP and to identify any assistance specific grads need in finding a job The CDO is considering developing the following micro-credentialing offerings: • Bankruptcy law and practice • CARES Act issues • Conflict resolution issues • Consumer protection • COVID-19 related healthcare regulations and compliance • COVID-19 related medical-ethics issues, including: DNR liability, rationing critical care, and duty to care • COVID-19 related employment liability issues • COVID-19 legal liability issues • COVID-19 in-person operations mitigation measures • Data security • Debt collection • E-discovery issues • Higher education sexual assault issues • Human resources issues • Human resources COVID-19 issues • Land title issues • Non-profit regulation best practices 8 • Risk analysis issues • Restorative justice issues • Secured transactions • Water law issues 6. Additional COVID-19 Recovery-Related Resources Resources for information regarding COVID-19 recovery issues: • Institute for Health Metrics and Evaluation (IHME): http://www.healthdata.org. • Staci Zaretsky, The COVID Crisis Law Firm Layoff Tracker, ABOVE THE LAW: https://abovethelaw.com/2020/04/the-covid-crisis-law-firm-layoff-tracker-whats-yourfirm-doing-tosurvive/?utm_campaign=Above%20the%20Law%20Daily&utm_source=hs_email&utm _medium=email&utm_content=86598867&_hsenc=p2ANqtz-6nXKg4i0E04hYBVxcQKtqp7hSmxUPBrJj6UcYHjZEAksC2pTc59hd3Q5ezqXMV9u2 xVUL39Bgzw3ZVni7xDjB37XXPA98ov8X6z65PBt5OuTPJKE&_hsmi=86598867. • NALP Weekly Industry News Digest: [e-mail]. • Federal CARES Act overview: https://www.youtube.com/watch?v=WkOLbeSYni4. • CDC Reopening Guidance for Cleaning and Disinfecting Public Spaces, Workplaces, Businesses, Schools, and Homes: https://www.cdc.gov/coronavirus/2019ncov/community/reopen-guidance.html • CDC May 2020 Activities and Initiatives for Opening America Up Again: https://www.cdc.gov/coronavirus/2019-ncov/downloads/php/CDC-Activities-Initiativesfor-COVID-19-Response.pdf • Utah State Government COVID-19 website: https://coronavirus.utah.gov • University of Utah COVID-19 website: https://coronavirus.utah.edu. • University of Utah Health and Safety Requirements for Level Orange (Limited Research Operations): https://research.utah.edu/coronavirus/documents/Health%20and%20Safety%20Complian ce%20Under%20Orange%205-8-20.pdf • Martindale-Avvo Research Report: 7 Best Practices for Attorneys Adapting to COVID19: https://www.martindale-avvo.com/blog/research-report-7-best-practices-forattorneys-adapting-to-covid-19/#pyp • Public restroom issues: https://www.washingtonpost.com/national/coronavirus-reopenbathrooms/2020/05/18/a6ed57fc-93ba-11ea-82b4c8db161ff6e5_story.html?pwapi_token=eyJ0eXAiOiJKV1QiLCJhbGciOiJIUzI1NiJ9.eyJ jb29raWVuYW1lIjoid3BfY3J0aWQiLCJpc3MiOiJDYXJ0YSIsImNvb2tpZXZhbHVlIjoi NTk3OTJjMjVhZGU0ZTI2NTE0Y2ExMzAyIiwidGFnIjoiNWVjNDQzM2ZmZTFmZj Y1NGMyZTE4Y2MyIiwidXJsIjoiaHR0cHM6Ly93d3cud2FzaGluZ3RvbnBvc3QuY29t 9 L25hdGlvbmFsL2Nvcm9uYXZpcnVzLXJlb3Blbi1iYXRocm9vbXMvMjAyMC8wNS8x OC9hNmVkNTdmYy05M2JhLTExZWEtODJiNC1jOGRiMTYxZmY2ZTVfc3Rvcnkua HRtbD91dG1fY2FtcGFpZ249d3BfdG9feW91cl9oZWFsdGgmdXRtX21lZGl1bT1lbWF pbCZ1dG1fc291cmNlPW5ld3NsZXR0ZXImd3Bpc3JjPW5sX3R5aCZ3cG1rPTEifQ.A6 EmxB3VE_BZ1V01eX0wE_puCrhufH3NqpXFnk-wmM&utm_campaign=wp_to_your_health&utm_medium=email&utm_source=newsletter& wpisrc=nl_tyh&wpmk=1 10