The practical aspects of how to practice law while protecting your reputation, your law license and staving off disciplinary proceedings highlights the need for established practices and protocols when engaging in virtual courtrooms for the foreseeable future. The court’s goal is to promote safety and convenience while reducing exposure to COVID-19.
There are horrifying articles surfacing throughout the country about lawyers being subjected to discipline and their clients being held in contempt due to misconduct. We have all heard the stories about lawyers appearing as cats and other animals due to a forgotten filter in place prior to a formal court hearing and the use of inappropriate nicknames and improper dress during remote court proceedings. Recently, the Michigan appellate court sanctioned a lawyer over $3,000.00 dollars for angrily displaying “the middle finger” during a zoom court proceeding. Some judges require that male lawyers be dressed, in a suit jacket and tie, at least from the waist up. There are other reports of misconduct by lawyers caught mumbling or openly complaining about their displeasure with being in the remote waiting room or some other issue when they thought they were on mute. Most troubling has been the display of ill- tempered lawyers openly displaying rude and obnoxious behavior that would never be tolerated in a physical courtroom when surrounded by deputies and court staff. In addition, some of my colleagues have caught lawyers texting their clients how to answer questions by using a hidden cell phone.
The truth is, most of us were challenged and many law firms were caught short-staffed especially sole practitioners. Although the ability to mute and unmute remains daunting, the mute button serves a meaningful purpose since it helps to reduce background noise which can be a great interference when I am zooming into the county jails during criminal cases. Also, family members teleworking and children working and attending school by zoom all in the same household can present a daily challenge. Many lawyers find it very trying to train a client on how to access the courtroom remotely and behave appropriately once there. I recall recently, a female lawyer who shall never be named, deeply involved in her legal argument but had no clue that her husband was standing behind her, perfectly still and basically nude with his belly exposed over tight fitting boxer shorts. I debated with myself as to whether I should say anything. I decided to remain silent and not draw more attention to the situation. I often wonder how many watched this public display and whether the lawyer ever become aware of it.
Let us keep the positive, and the good and eliminate the bad and the ugly of remote courts. We have all had WI-FI issues, even major cable shows, but all is not lost. The positives include reduced costs and time, there is no need to drive to the courthouse or pay for parking, and you can multitask while you are waiting for your case to be called. The negatives unfortunately are that in most jurisdictions there are no known standardized rules in place. Jury Trials are a right and access to the courts is paramount for all litigants. We must protect due process, preserve courtroom decorum, and maintain consistent ethics and professionalism in all courts. As Chair of the ABA Jury Commission, I recommend that you read the extensive survey and report prepared by Co-authors Shari Seidman Diamond and Jessica M. Salerno entitled “Reasons for the Disappearing Jury Trial: Perspectives from Attorneys and Judges” published in the Louisiana Law Review in 2020 (Vol. 81, Fall 2020 Number 1). The Report concludes that when “fewer citizens have the opportunity to participate as jurors, this reduction threatens the values of a deliberative democracy…”
We must all keep the faith, bring our patience to zoom and keep the practice of law moving forward!