NCBJ 2022: Post-Pandemic Ethics

Besides sweeping away the competition in ballroom dancing competitions and having been a law school dean at a young age, Prof. Nancy Rapoport is known as the teacher who can make ethics interesting.  She gave the keynote address for the Commercial Law League luncheon titled Brave New World--Ethics Issues That We Never Knew We Had. 

Prof. Rapoport talked about how the pandemic changed us and the way we practice law. She pointed out that because of the pandemic we did things we didn't know we could do and did without things that we thought we had to have. Virtual platforms such as Zoom and Webex make it possible to connect remotely but pose their own challenges. She solicited stories from the audience and got the following.

During the Gold's Gym case, there was an auction conducted by Zoom. There were two staid American bidders and a German contingent. The Germans were doing the auction from a hot tub. When they won the auction and jumped up to celebrate, the other participants were relieved to see that they were wearing swim trunks (although one was wearing a Speedo).

In another case, a trustee was not so fortunate. A debtor was doing his 341 meeting from his phone in bed. When he shifted his position, the trustee saw more of the debtor than he cared to. 

In another case, a doctor was participating in a Zoom hearing when natured called. He forgot to turn off his camera when he went to use the restroom. An alert courtroom deputy warned the doctor's lawyer before things got too graphic.

Prof. Rapoport said that the first rule of virtual connections is that you must wear clothes.

This led to the obligatory reference to Comment 8 to ABA Rule 1.1:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

Failure to keep up with technology can lead to some humorous results, such as the attorney who didn't know how to turn off the cat filter on his Zoom and had to tell the judge that he was not a cat or the attorney whose vocal settings were sped up so that he sounded like a chipmunk. However, episodes like this do not make you look good in front of your client.

In some cases technology can lead to temptations to cheat in ways that people would not do in person. Someone from the audience mentioned a case where they could see the shadow of cue cards being shown to the witness. Prof. Rapoport recommended asking the following questions during virtual depositions or hearings:

Who is in the room with you?

What electronic devices do you have turned on?

Is your email turned on?

In one virtual trial I was involved in, a married couple was testifying from the same room and using the same camera. The judge had to caution them to stop correcting each other's testimony. 

Virtual practice provides new opportunities for the unauthorized practice of law. Rule 5.5(a) states:

A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.

What happens if a lawyer licensed to practice law in Texas begins practicing from his vacation home in New Mexico where he is not licensed? What happens if an attorney attending NCBJ in Florida appears for a WebEx hearing in Texas from his Florida hotel room?  ABA Formal Opinion 495 addresses this issue:

Model Rule 5.5(b)(1) prohibits a lawyer from “establish[ing] an office or other systematic and continuous presence in [the] jurisdiction [in which the lawyer is not licensed] for the practice of law.” Words in the rules, unless otherwise defined, are given their ordinary meaning. “Establish” means “to found, institute, build, or bring into being on a firm or stable basis.”2 A local office is not “established” within the meaning of the rule by the lawyer working in the local jurisdiction if the lawyer does not hold out to the public an address in the local jurisdiction as an office and a local jurisdiction address does not appear on letterhead, business cards, websites, or other indicia of a lawyer’s presence.3 Likewise it does not “establish” a systematic and continuous presence in the jurisdiction for the practice of law since the lawyer is neither practicing the law of the local jurisdiction nor holding out the availability to do so. The lawyer’s physical presence in the local jurisdiction is incidental; it is not for the practice of law. Conversely, a lawyer who includes a local jurisdiction address on websites, letterhead, business cards, or advertising may be said to have established an office or a systematic and continuous presence in the local jurisdiction for the practice of law.

 

As Prof. Rapoport summarized it, you can take your hat to a new locale but you can't hang out a shingle there.

Remote work offers new opportunities for breach of privacy. If you are working on your laptop at Starbucks, can other people walk by and see what you are doing? If you are counselling a client and have Alexa or Siri turned on, can those electronic devices overhear your conversation? If you are sharing your screen on Zoom, be sure that you are not sharing more than you intend to. I had a hearing once where an attorney accidentally shared his outline for questions instead of an exhibit.

It is not enough for attorneys to guarantee their own security of confidential information. The ABA rules include the duty to supervise. That means that a firm should establish rules for attorneys working remotely and monitor that they are being followed.

While many younger attorneys enjoy the ability to work remotely, there is a darker side. Remote attorneys may experience more anxiety and isolation leading to substance abuse. Supervising attorneys need to do regular check-ins with their remote associates to make sure they are doing ok. 

Prof. Rapoport also raised an interesting issue as to how we train young associates when many of the tasks they used to do, such as drafting contracts can now be done through Artificial Intelligence. Hopefully the answer is to engage associates with more meaningful substantive work and less routinized drudgery. 

You can find Prof. Rapoport's slides here.