Judicial Roundtable explores the ethical challenges of remote technology
'Things aren’t operating the way that they always have, that doesn’t relieve anybody of their ethical or professional obligations'
For the most part, Central Florida lawyers are responding professionally to the COVID-19 pandemic and its impact on the courts, according to a panel of Ninth Judicial Circuit judges.
Led by Chief Judge Donald A. Myers, Jr., the panel participated in a “Judicial Roundtable: Litigation Ethics — Candor, Competency, and Fairness,” as part of the 2020 Masters Seminar on Ethics.
The June 19 live webinar was sponsored by the Professional Ethics Committee as part of The Florida Bar’s first virtual Annual Convention.
Joining Judge Myers on the panel were Circuit Judge John E. Jordan, who is assigned to the complex litigation division, and Circuit Judge Julie H. O’Kane and Circuit Judge Tom Young, both of whom are assigned to the criminal division.
The judges spent approximately an hour describing the professionalism and ethical challenges of remote technology and the courts.
Lawyers have done a good job adjusting to video conferencing and other remote platforms, and it helps that the Ninth Circuit has been recognized as a technology leader, Judge Myers said.
“We have adjusted what we’re doing in some pretty dramatic ways, and really, in a pretty dramatic volume,” he said. “Our bar has just done a fabulous job of adjusting and adapting.”
But that doesn’t mean there hasn’t been challenges, Myers acknowledged.
“Because our backbone is Cisco-based, we’re somewhat limited when it’s necessary for those hearings to tie in to our due process digital court reporting, translating, or interpreting services, and other things that are part of what we have to accomplish on the court side,” he said.
By failing to transfer certain files to judges electronically, some beginning lawyers appear to be forgetting the basics, Judge O’Kane said.
“Just because the attorneys are appearing remotely, or via video, does not mean necessarily that the rules of evidence have been relaxed,” she said. “One of the challenges I’ve seen for some of the younger attorneys is they forget that they still have to lay the legal foundation for the admissibility of some of their evidence.”
Judge Jordan said one of his biggest concerns is the way some attorneys treat pro se litigants.
“I’m seeing ethical, not professionalism, ethical problems, when it comes to pro se parties,” he said. “Everybody is assuming that they can get on Zoom, or on Teams, or whatever, and you can’t assume that…they’re not making sure, especially in evidentiary hearings, that pro se parties have access to the court.”
One way the Ninth Circuit is addressing the problem, Judge Myers said, is by offering pro se litigants access to a computer terminal that has been set up in a courthouse conference room.
Court officials are also exploring a way to set up computer kiosks in other government buildings throughout the circuit, he said.
The good news, the judges said, is that the crisis appears to have made lawyers more willing to resolve disputes on their own.
For example, Judge O’Kane said, prosecutors and defense counsel are agreeing to pre-trial release conditions without requiring the court to intervene.
“The parties are agreeing to bond conditions, or ROR, without insisting upon a hearing, whereas before the pandemic, the response would be, ‘we’re not going to agree, we just need to have a hearing,’” she said.
That collaborative spirit isn’t limited to the criminal division, Judge Myers said.
“I think the same is generally true in our civil divisions, too,” he said. “The two words we’ve used consistently around the Ninth Circuit are grace and flexibility — things aren’t operating the way that they always have, that doesn’t relieve anybody of their ethical or professional obligations.”
A Ninth Circuit administrative order requires parties to attempt to resolve their differences before they schedule a hearing, Judge Myers said.
“In that meet-and-confer process, we require that folks pick up the telephone, or see each other in person, believing that that’s such a critical part of the ability that we as humans have, as lawyers have, under our professional ethics and guidelines, to be able to resolve issues ethically.”
Judge Young said some lawyers are forgetting how easy technology has made it for judges to know when an attorney is fudging the truth. He said a lawyer recently claimed he was unprepared for an evidentiary hearing that had been pending for two months because he didn’t receive the order appointing him to the case.
“I was able to look down at my Service Pro and pull up my service list, and read to the lawyer the two addresses at that lawyer’s office to which the order of appointment had been served, and, of course, there was silence,” Judge Young said.
Judge Jordan suggested that voluntary bar associations could improve professionalism with more mentoring programs.
“When you read these deposition transcripts, when one attorney is terribly attacking another attorney, right in front of the court reporter, it’s because they don’t know each other,” he said. “In the final analysis, right, opposing counsel’s your colleague. Let’s do a better job of teaching people to be colleagues.”