It’s the very first rule in the American Bar Association Rules of Professional Conduct: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
Sounds simple. But what if the court hearing is live and online, the Wi-Fi connection is spotty and the client, who is miles away, wants to talk confidentially? Four experts at a recent American Bar Association webinar offered advice on how lawyers and judges can navigate tricky ethical issues during online hearings. The November 1 program, “Judicial and Lawyer Ethics in a Virtual Court,” was sponsored by the ABA Judicial Division and Thomson Reuters.
Among the nuggets of advice:
• Know the technology. Don’t wait until the hearing. That’s too late.
“You want to be able to know how to mute, when to mute, how to put your camera on, how to share documents or sometimes maybe how not to share documents,” said A.J. Singleton, general counsel with Stoll Keenon Ogden PLLC in Lexington, Kentucky.
Don’t forget, Singleton said, “You are the agent for the client. And you don’t want to put yourself in a position where because you don’t know how to use the technology, because you don’t have the right bandwidth… you are not presenting the best view in front of the judge,” which could affect the outcome.
Also, Singleton added, there is “the embarrassment factor… You don’t want to be that person who ends up in the late-night talk-show video,” using an app that makes you look like a bunny in front of the judge.
• Judges also should know the technology. It’s not enough to trust the staff. In a physical courtroom, the judge knows where everything is – the entrances and exits, how to keep parties separated, security, who should speak when. “Those same rules apply in a virtual setting,” said Judge Peter M. Reyes Jr. of the Minnesota Court of Appeals. “Judges need to be familiar with how the technology works.”
• Judges should set ground rules. Emily Chafa learned this lesson during her years as an administrative law judge in Iowa, where much of her work was done by phone.
Many parties in virtual hearings are self-represented litigants, she said, so it’s important for judges to describe procedures in simple language and to repeat them often. For example, there should be no interruptions and only one person should talk at a time. Also, she said, minimize background noises from things like pets, children, and colleagues.
The mute button is “always a great tool” for judges, Chafa said, but it should be used sparingly and always with advance warnings.
• Look at the camera. Don’t look to the side or at the screen. “In a physical setting, you wouldn’t do that,” Reyes said. “You want to be addressing the court itself.” The same rule applies to judges, he added.
• Make sure the microphone is off before you say something privately. Marla Greenstein, executive director of the Alaska Commission on Judicial Conduct, recalled disciplinary cases from other states in which judges thought the mic was off and the proceedings over, then made “very un-judicious comments” to a staffer or to themselves. “Those remarks shouldn’t be made any time, whether you’re recorded or not,” Greenstein said.
• Plan in advance how to handle sidebars. Sometimes lawyers need to raise confidential matters with the court, Greenstein said. That can be a challenge in a virtual hearing. “Most courts, hopefully, have figured that out ahead of time,” she said.
• Plan for one-on-one lawyer-client meetings. Make sure there’s a virtual breakout room to accommodate confidential lawyer-client discussions, Chafa said – especially if the lawyer and client are in different places physically.
• Be flexible about clothing. Judges in Alaska often don’t require formal business attire for virtual hearings, Greenstein said. For example, someone calling into court during a break at their auto repair job is not required to wear a suit and tie, she said. “There’s a recognition that part of the flexibility that virtual hearings afford people is that they can call in from whatever they are doing at the moment,” Greenstein added.
The panel was moderated by Victoria A. Alvarez, an associate with Troutman Pepper in Charlotte.
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