Moulton BellinghamArticles

Coronavirus From An Associate's Perspective

By Bryce A. Burke

How close to home did the coronavirus situation come to you before you appreciated its significance? On Monday, March 16, we were still planning a lunch with some of the younger local bankruptcy practitioners in Billings. The NBA had already postponed its season following games on March 11, and the NCAA had announced that it would be hosting its tournament without fans before cancelling the tournament altogether. I was naïve. The whole situation was serious, but it did not fully register with me how much everything would soon change. I requested that we postpone the lunch meeting for another week, since I was going to be out of town for two days in California for my sister’s wedding. Within 48 hours restaurants in Yellowstone County were closed and the wedding was cancelled except for the parents of the bride and groom. The most serious personal changes were still coming.

Beginning on March 17, Moulton Bellingham closed its offices to in-client meetings and all non-office personnel. In addition, our office encouraged that attorneys work from home as much as possible. So began the most challenging and interesting part of my young law career.

In some ways, the practice of law is not much different when working from home. The commute is shorter, but most days are still spent largely in front of a computer. Communication, however, changed dramatically for me when it was limited to phone and email. As was reflected recently by a colleague, it is easy to take for granted the small personal interactions at work each day. I did not recognize how much I appreciated walking down the hall to ask for guidance on an unfamiliar area of practice. Now, every communication with another attorney involves the decision of whether the question is big enough that it is worth a phone call, or if it can wait for the possible delay of an email response. I miss having the ability to instantly check in with another associate for reassurance on some of my smaller questions.

The changes to bankruptcy procedure have been interesting to navigate. On March 16 the Court issued General Order 2020-4. The Court continued in-person § 341 meetings or required those meetings to be held telephonically. While § 341 meetings by phone have been managed well, many of the nuances of an in-person meeting are lost. It is incredibly difficult to question a Debtor while trying to convey emotion and understanding over the phone. When every inflection change comes across clearly, subtle nuances that can easily be dismissed when one is speaking face-to-face could potentially be misconstrued. It is also takes a larger effort to maintain the demeanor and professionalism required of an officer of the legal system while being faced with the reality that you (and others in attendance) may be scattered through basement home offices and other isolated locations, rather than face-to-face in a courthouse.

As a creditor’s attorney, the current situation requires a strong balancing of issues. Stay-at-home orders and the required closure of non-essential businesses puts an incredible strain on all businesses, especially those faced with a financial situation that originally forced the business into bankruptcy. Even the most common bankruptcy issues are now in flux. What amount of protection is adequate when a business is closed because it is not essential? How can a Chapter 11 plan be confirmed as feasible when it is unknown when businesses will reopen and the state of the economic recovery following the pandemic?
The current issues have paved the way to an increased focus on pre-hearing negotiation. Now local Orders require that “attorneys must confer with each other and their clients and determine whether it is imperative that a hearing be held.” As I am still early in my practice, I find that I over-prepare before any hearings, reviewing in painstaking detail any and all issues that may arise. The current situation has helped me to understand and isolate the important details of pre-hearing procedures. Taking the Court’s advice to isolate the reasons for an alleged objection has helped to minimize the “noise” related to all the facts and circumstances of a case that are not important to resolve an issue set for a hearing.

The correspondence required by the Court’s COVID-19 Orders has solved many issues and brought about negotiated resolutions without the need of the Court. Often, I find myself viewing cases narrowly and only from my client’s perspective. Now that the Court is independently reviewing matters to determine whether hearings are “essential” or “non-essential,” I have broadened my view to recognize that all parties are navigating uncharted waters with the current situation. Moving forward, I hope to maintain the philosophy that a contested issue does not necessarily mean that parties cannot come to an agreement, and many disagreements can be resolved without the Court. Our profession is an adversarial one, but in many instances a stipulated agreement, rather than a fight requiring the Court’s intervention, will leave the parties wither a greater ability to control the outcome of their case.

From a personal perspective, the current situation has been entertaining. My son Killian is an energetic and loud 19-month-old, and he has adapted better than anyone to the stay-at-home requirements. As much as possible, we have tried to keep life normal for him by following a daily routine. My wife and I decided that it would be better for everyone if Killian did not know that I was working from home. For the first week, we would even maintain the same morning procedure, hoping that we could trick him into believing I was going to work. I even acted out leaving, by saying goodbye and walking out into our garage. On day three the gig was up. Killian casually strolled into my basement hiding place, greeting me with a “Hi Dada” that seemed to indicate he knew that I was home all along.

Killian also likes to stay involved and make sure my work is done right. Once or twice a day he will join me in my office and “help” while sitting on my lap. Within seconds, he will grab every pen on the desk, and he has a gift at finding the most important paper as his chosen medium for drawing. While these interruptions are distracting and unproductive, they are short-lived. Although I look forward to the day that things return to normal, I will miss these little daily reminders to keep everything in perspective and remember the reasons why I work.

The current situation also gives me even more appreciation for my wife, who has the Herculean task of working while balancing most of the childcare duties. Now that I can hear most of the activities that go on at our home each day, I understand even better the level of energy necessary to wrangle a toddler while I perform relatively sedentary work.