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Legal Services During A Pandemic

Lori Walsh: Covid-19 has us rethinking how we work, learn and access medical services. We're also hearing questions from listeners about a variety of legal services. Neil Fulton is Dean of the School of Law at the University of South Dakota. He joins us now on the phone. Welcome. Thanks for being here.

Neil Fulton: Thank you for the opportunity, Lori.

Lori Walsh: I want to start, we've got lots of people wondering about specific things, but I want to start with you if you would about the judicial state of emergency that a Chief Justice of South Dakota Supreme court, David Gilbertson declared. How does that impact us in our daily living?

Neil Fulton: It kind of depends on where you are, how it's affecting you. The Supreme Court has the authority under their rules to declare a judicial emergency if an emergency or natural disaster substantially endangers or infringes upon normal judicial function. So what the Chief Justice did was proclaimed judicial emergency, which allows the Supreme Court to relax certain deadlines and filing rules and then delegated to each of the presiding judges of the seven various circuits across South Dakota that they implement a local rule addressing how court would operate. Because how this is going to affect somebody in Sioux Falls or Rapid City may be very different from someone in a smaller community and some communities are seeing the impact to a much greater degree.

Lori Walsh: So listeners have questions about the things that were already in process. So you're in the middle of a divorce, you're in the middle of a custody dispute, you have a court case coming up, all kinds of things. What are some of the fundamentals? Is everything on pause? Do things go forward depending on what they are?

Neil Fulton: So what the state courts are trying to do is keep everything moving forward as best they can, realizing that you have to prioritize. So the Supreme court and most of the circuits have prioritized first and foremost criminal cases where defendants are in custody. If you are charged with a criminal case, you have a statutory and constitutional right to be tried in a speedy fashion and for those folks who are detained pretrial, it's a very real issue because you are sitting in jail. So those are prioritized.

Other things like civil matters, which are obviously important but don't have quite the same level of pressure are being prioritized by the local courts and in a lot of instances are being handled creatively through phone and video conferencing so that people can move their matters forward but that everyone can be safe and not exposed. One thing that the court has done though is provide that anyone who's impacted Covid is able to obtain a continuance from the court. So for example, if you're self quarantined or exposed or sick, the court is allowing folks to make sure that they're not prejudiced by the fact that they've been exposed to the virus.

Lori Walsh: Even if they are not able to get a test.

Neil Fulton: The orders don't specifically address that I guess. So like anything else in the law, we sort out the facts and if we found out that someone had requested a Covid extension but actually wasn't sick, that probably wouldn't go so well. But obviously you're going to have health care providers and people caring for people around them who might not themselves be exposed but might not be able to move a judicial matter forward in the same way they could before.

Lori Walsh: People are asking us about things like custody orders. So in an isolation or stay at home order or a shelter in place or a quarantine and however you're sort of defining those slightly different things, kids go back and forth to different families and some people want that to stop. And often the person who is not getting to see the child doesn't want it to stop. How should people think about things like custody orders?

Neil Fulton: Well, under South Dakota law, the standard for anything custody related is the best interest of the children and really I think that's the first place anyone should start with the custody matters, what's best for the child. Our rules and then procedures for custody cases typically require that parents consult with each other before they go to the court for an order. So if you're in a shared custody situation, those folks should consult with each other and make the determination whether the child should in fact stay with one of the parents for an extended period right now to avoid exposure or transmission or those types of things.

A lot of states are wrestling with this and again, this is really uncharted territory for everyone. So what happens when you have the parents that just refuse to sort this out and one of them asserts that the child must or must not move? We just don't know the answer to that yet. But really if I could give advice to someone that it would be to step back and say what's in the child's best interests for health and safety because that's what the court's going to eventually look at too.

Lori Walsh: Will there be consequences for that if one parent maybe doesn't take it seriously and says, I don't believe this is that big of a deal and the other parent is following CDC guidelines. Is it possible that there are consequences for decisions that are made down the road?

Neil Fulton: There could be. Once custody orders are in place, usually you need changed circumstances to adjust them. If custody is being determined, could that be a factor that the parent didn't make appropriate decisions about the safety of a child? Sure. That could enter into the judge's equation. Again, in this larger balance of what's in the best interest of the child and with the presumption in South Dakota that in custody settings there is shared custody with a reasonably approximate to 50-50 division in most settings.

Lori Walsh: This is a grim topic in some ways and a perfectly reasonable one though. And that's that people are thinking about updating their wills or they haven't done a will or they're trying to figure out how to do that. They might normally a contact an attorney and ask them for guidance. What do you think? How do people begin if they need to make a change or if they've never done one before?

Neil Fulton: It's always good to have a will to address your property and particularly if you have young children, my wife and I do and that's what drove us to do a will is not so much concern for our property but concern for placement of our children. And a lot of lawyers out there are closing their offices but are still doing business remotely and in a lot of instances they should be able to make arrangements to get wills completed and signed, even with social distancing protocols. The number of people you need in a room to sign a will is less than 10 and typically you'll be able to do that in a way that's safe. The other thing is if someone is in a position that they just can't go out into the community, the law does recognize what's called a holographic will, meaning a will written out in your own hands. So if someone is just not in a position to get out and have a will formally prepared, they can sit down with a sheet of paper and write out in long hand and sign at the end their intentions about their property and their children.

Lori Walsh: What are the ways to do that? Are there things that you need to know before you take that step? I guess what I'm really wondering is it just a guideline? Is it like, "I would like all my property to go to my kids or I want my kids to stay with their grandparents" and that's enough, you hit the big things. Are there traps that you might fall into?

Neil Fulton: Generally with a holographic will, the court tries to resolve it in a way that effectuates that person's intent. So the thing is just try and be as clear as you can. So for example, I'll use my wife and I as an example. We pass all of our property to our children if we're both gone and we make a designation about family members and we've got a couple in there in case something's happened to them who would take our children. And so I think you just want to be as clear as you can and as simple as you can. Most of us really just don't have property at such a level that we have to worry about it very much and we're going to give it to one or two people. So just be clear about that. And then in terms of what you want to happen with your kids, just be as clear and succinct as you can with that.

Lori Walsh: For people who are thinking about their resuscitation orders or their do not resuscitate, their power of attorney, their medical powers of attorneys. One of the questions that we had was, you might have an older person who has a do not resuscitate order and who doesn't want to use resources and now they're living alone. If they have to call 911, they might not be able to communicate those wishes. How does this all change? When people can't really be in the room with their loved ones in many cases because of the contagiousness of this disease.

Neil Fulton: So in those instances, I think what you really want to do is make sure that the people who are going to be decision makers know where those living wills are and have access to them. And if those are in place and signed, they can be transmitted electronically.

So I'd make sure that your children knew where those things were, that your spouse knew where those things were. If you have a primary healthcare provider that they have a copy of it and are aware of it when it's out there. It's more complicated for someone to give handwritten directions on that because obviously the providers are going to err on the side of providing sustaining treatment. But I think the big thing would be if you have a living will in place, make sure that you have shared it with the people who are going to be asked about what your intentions were if you're not able to express them yourself.

Lori Walsh: Protection orders. We had a listener question about going to get a protection order and not being able to get one. Is that fairly common? You know what I'm asking? Was that a case by case situation where they said, no, we're not going to issue a protection order or is there a sort of a blanket, we're just not doing that right now.

Neil Fulton: That's probably going to be on a case by case basis. Whether they're able to conduct a hearing is going to be a real issue. I know some States more than South Dakota are wrestling with exactly this situation because people are dealing with shelter in place, more restrictive directions from state and local governments than some other States. You definitely have situations where people are now confined in situations that may be abusive or dangerous and so it's going to be case by case here from everything I've seen.

Lori Walsh: What's your advice to some of these law students? I'm thinking about the students who are getting ready to graduate or who are on a path that has now been interrupted. What are some of the challenges facing young attorneys in South Dakota because it's always such a challenge to keep them here and put them to work in South Dakota any way to get people in that pipeline. What sort of impact do you think we might see in the future?

Neil Fulton: We're certainly going to see some disruptions of working through graduation here, working through the application process for incoming students. The law school admission test in March was canceled. The law school admission council is working on ways to make that available in April and May in ways that allow social distancing. What I would tell our students in fact did tell our students this morning because I'm trying to email the law students every day and give them updates, is there are really three things for us right now. The first is the most important thing remains providing them with a great legal education and them becoming the best young lawyers that they can be in a situation that's challenging. The second thing is this is a really difficult time for all of us and it's necessary that we respond as a society with largeness of spirit with patience and concern for the people around us and I think that that is something that we as lawyers do as leaders in our society.

And I told the law students, this is your opportunity to step forward and lead with largeness of spirit and being an example for people around you. And the last thing is a reminder of why we are doing these things. It gets very easy to get focused on the disruption of our class delivery, of our life and all those things. But we're doing this in order to save lives. The advice from the best medical professionals is we need to do these things to keep people around us safe. For our friends who are immunocompromised, for our parents who are at an age where they may be at risk, and we have to do this because it's what a civilization does. And so again, I advise the law students that we will work through the issues of employment and Bar admission and all those things because we can, but we need to do these things because we must.

Lori Walsh: I think that's beautifully said. Dean Fulton, thank you so much for being here with us today. We appreciate your time.

Neil Fulton: Thanks so much, Lori.