As we are all too aware, the pandemic resulted in court proceedings and arbitration hearings being conducted virtually. While litigators have been working, and in some cases struggling, to adapt to a virtual forum, the speed of the shift from in-person to virtual proceedings forced a number of lawyers to rely upon the courts, arbitration providers, and third-party tech companies to provide secure videoconferencing services. However, this reliance on third parties for technological needs, coupled with an overall lack of basic skills in technology, can not only lead to mishaps at a hearing or trial but can also be a violation of a lawyer’s professional duties.
New ABA Opinion 498—Duty of Competence When Utilizing Technology
ABA Opinion 498, “Virtual Practice,” was issued on March 10, 2021. The opinion states that while practicing virtually, a lawyer “must consider ethical duties regarding competency . . . especially when using technology.” Quoting Comment 8 to Model Rule 1.1, to fulfill this obligation a lawyer must keep abreast of changes in the law and its practice, “including the benefits and risks associated with relevant technology.” Opinion 498 reminds lawyers that they have an affirmative duty to take reasonable steps to prevent mishaps that could negatively impact their representation of a client during a virtual hearing.
Mishaps Occurring During Virtual Arbitration Hearings
Virtual hearings lack the safeguards that naturally occur when participants are in the same physical location and everyone can see what is happening and hear what is being said. As a result, the failure to understand relevant technology associated with virtual hearings can have disastrous consequences. For example, the following mishaps occurred during virtual hearings in cases being administered by the American Arbitration Association (AAA):
- All agreed to use a court reporter, but no one actually made the arrangements. The mistake was discovered when someone asked the court reporter to read back a portion of the transcript during the hearing and there was no response.
- All agreed that witnesses would be sequestered until they were scheduled to testify. A non-party/non-expert witness was allowed to join the hearing early—a mistake that was only discovered several hours later.
- All parties and/or representatives attending a hearing were required to be visible on the screen at all times. While one of their witnesses was testifying, a law firm lost power and the videoconferencing system shut down. The firm was eventually able to rejoin the hearing, but one of the firm’s attorneys was no longer visible on the screen. The witness resumed testifying. No one realized there was a problem until opposing counsel lodged a complaint with the arbitrator that the witness had been coached while testifying by the non-visible attorney.
- A witness, participating via videoconference from a separate location, activated a recorder while testifying. Counsel had failed to advise the witness that recordings were prohibited.
In order to avoid these unfortunate occurrences, procedural safeguards need to be implemented, documented, and communicated to all participants for every virtual hearing.
Procedural Safeguards to Prevent Technological Mishaps
- Benefit from a virtual hearing scheduling order. Lawyers should familiarize themselves with the different procedural safeguards that could be included in a virtual hearing scheduling order. In March 2020, the AAA issued a document to assist counsel and arbitrators with the drafting of such an order: the Model Order and Procedures for a Virtual Hearing via Videoconference. The model highlights a number of procedural issues that counsel and an arbitrator could discuss prior to the start of a virtual hearing. Experience at AAA has shown that mishaps typically occur when a virtual order was not issued or, if issued, did not include all the necessary details, such as who will make the arrangements for the court reporter.
- Actively monitor the virtual hearing. While helpful, inclusion of safeguards in a virtual hearing order is not enough—lawyers need to actively monitor what is occurring throughout a hearing. To assist with this effort, counsel could assign someone responsibility for constantly monitoring who is or is not participating in the hearing and whether agreed upon procedures are being adhered to, such as all participants in the hearing must be visible on the screen.
- Prevent coaching while testifying. Complaints raised with AAA arbitrators have involved allegations that a witness is being coached while testifying. Best practice is to have all witnesses participate by videoconference. The arbitrator should consider asking every witness to confirm (1) the identify of authorized persons in the room with the witness, (2) that there are no unauthorized persons in the room, (3) that the hearing is not being recorded, and (4) that the witness is not communicating privately with another person while testifying. Every witness should be instructed to immediately notify the arbitrator if someone enters the room while the witness is testifying.
As the ABA reminds us with Opinion 498, a lawyer’s duty of competent representation is threatened if lawyer fails to proactively address technological concerns and further delegates this duty to third-parties during virtual hearings. By implementing the suggested safeguards and further obtaining a basic understanding of relevant technology, lawyers can ensure they are both complying with their professional duties and providing the best representation for their clients.