Have you seen “Cat Lawyer” on YouTube? The now-viral video depicts a Texas attorney appearing before the court remotely via Zoom. Unfortunately for the attorney, a video filter that superimposed the image of a cat over his own was inadvertently switched on before the hearing. Upon realizing he appeared before the court as a talking cat, he offered the now-infamous explanation to the court, “I’m here live, I’m not a cat.”
While this now-viral technology blunder did not impact his client’s rights, “Cat Lawyer” serves as a cautionary tale for legal practitioners and the clients they serve. Pennsylvania Rule of Professional Conduct 1.1 sets forth the lawyer’s duty to provide competent representation to his or her client. Comment 8 to that rule states explicitly that a lawyer “should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology….” Thirty-eight states have adopted rules which include technology competence as part of the lawyer’s professional, ethical duties.
Since the COVID-19 pandemic began, tech tools such as Zoom, and WebEx have gained traction out of necessity in the legal field. Looking back at Comment 8, our understanding of what “relevant technology” is has undoubtedly changed in the past year. “Relevant technology” has evolved from e-mailing and scanning to conducting depositions and court hearings online via Zoom. Certain jurisdictions have even conducted trials via such platforms.
In the first opinion of its kind, the Pennsylvania Bar Association addressed maintaining ethical practice while working remotely. They stated that a lawyer’s duty to provide competent representation includes the obligation to understand the risks and benefits of technology. Specifically, the opinion highlighted many ways to enhance competence and confidentiality in remote practice, such as avoiding the use of free wi-fi, using multi-factor authentication, and being cognizant of where you are accessing data. The opinion reiterates that lawyers working remotely must consider the security of their systems, which includes confidentiality of client telephone and virtual conversations. They also provided best practices for video conferencing, including requiring a password for meetings and not sharing links to teleconferences on an unrestricted platform, such as social media.
While many aspects of life are returning to more normal practices, we expect that these virtual options will remain in place. In March 2021, the ABA issued Formal Opinion 498 to address the ethical challenges of practicing virtually. The Formal Opinion reminds lawyers to pay attention to virtual meeting platforms, data exchange platforms, and technology that might be listening, such as microphones and speakers.
Going forward, there are some Zoom and teleconference competence and etiquette considerations to keep in mind as we continue into remote proceedings and communication.
One consideration is to remember to have a clean, appropriate background. Review any documents or bulletin boards that are potentially visible on camera and could breach confidentiality to your clients or become evidence if you are a witness. Consider that your actual or virtual background on camera might convey an impression to the just contrary to the impression you wish to make.
Additionally, leave the room when having a privileged conversation with your client or attorney. It is a good habit never to trust that your computer, phone, or other microphone devices are entirely muted, so carrying on any private conversations should be done completely away from technology.
Finally, make sure to position your camera at eye level and direct eye contact into the camera, not on yourself. Otherwise, it will appear that your attention is directed away from who is on the screen and made them feel like you are distracted. Try to position the window in the top middle of your screen, as close to the webcam as possible. That way, you appear to be making eye contact with whoever is speaking on screen.
When the Winter 2020 issue of Network Magazine was released, the ability of counsel to effectively navigate a remote deposition or hearing was not considered to be within the anticipated (and expected) boards of competence required of attorneys. That has undoubtedly changed, and it remains to be seen whether and to what extent aspects of the practice will remain virtual in the years to come.
