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Technology Competence Requires Ethical Compliance During Remote Proceedings

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.


Technology Competence Requires Ethical Compliance During Remote Proceedings

With new COVID-19 variants popping up left and right, we face renewed uncertainty about the pandemic and the near future. As a result, many law firms continue to allow remote work, and some legal proceedings are occurring virtually.

The challenging times we face highlight the importance of ensuring that not only that your law firm is as fully functional as possible when working remotely, but that lawyers and staff comply with ethical obligations even when attending online proceedings.

Part of this requirement is that lawyers maintain a duty of technology competence. Technology competence is not a new concept. There are now 40 states that have adopted this ethical requirement. The most recent one to do so was Hawaii, which revised Comment 6 to Rule 1.1 of the state’s Rules of Professional Conduct to indicate that lawyers must “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” The revision became effective earlier this year on January 1, 2022.

As more states increasingly adopt this ethical requirement, it becomes all the more important for lawyers to have a thorough understanding of their technology competence obligation, which includes understanding their ethical duties and how they apply during remote proceedings. The failure to do so can often have significant ramifications.

Case in point: a recent State Bar of Arizona disciplinary proceeding wherein a lawyer was recently suspended for 60 days for impermissibly coaching a client by using chat features while the client was being cross-examination on a video meeting platform.

In the Matter of a Member of the State Bar of Arizona, Ryan Patrick Claridge, Bar No. 031752, it was alleged that Claridge sent chat messages to his client that “directed her to provide specific, substantive answers to specific questions that were being asked of her.”

According to the Court, when Claridge was admonished for sending the chat messages, he agreed to stop sending them but justified his actions by saying that “it would be the same as if I shook my head in the courtroom.”

The Court disagreed and imposed sanctions after concluding that his “conduct violated Arizona Supreme Court Rule 42, specifically: ER 3.4(a)(fairness to an opposing party; ER 8.4(c)(deceit); and ER 8.4(d)(conduct prejudicial to the administration of justice)...”

This conclusion makes sense. After all, virtual behavior is simply an extension of offline behavior, and coaching clients during a deposition is impermissible whether it’s done in person or electronically. In other words, the medium doesn't change the message.
When participating in a remote deposition, understanding your jurisdiction’s ethical rules is paramount. Doing so ensures that your interactions both online and offline are permissible. With that necessary foundation, you'll be in a position to assess whether your virtual conduct is, in fact, ethical.

Certainly, the online world sometimes presents situations that are not easily translated into offline conduct, but I would argue that this was not one of them. During depositions, coaching is coaching no matter the format, and doing so is unethical.

As we head into a future that will undoubtedly include increased online interaction even after the pandemic has abated, it’s all the more important to ensure that you err on the side of caution and tread lightly when interacting remotely with clients, opposing parties, their attorneys and the court. As I always say, better safe than sorry - especially when your license to practice law could be at risk.

Nicole Black is a Rochester, New York attorney, author, journalist, and the head of SME and External Education at MyCase  law practice management software for small law firms. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at [email protected].