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.
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.
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:
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.
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