Growing up, Candid Camera was one of the most popular television shows, predating the reality programming we have today. Back then, host Allen Funt used hidden cameras to capture ordinary people’s reactions to unusual situations staged to elicit maximum effect. Today, in our professional lives, rather than having face-to-face exchanges where we know we are being observed, we deal with the camera hiding in plain sight. With so much of our professional lives conducted virtually, it is easy for the best of us to forget we are being watched and overheard. Too many lawyers have been caught unawares in embarrassing and risky situations, harming our reputations and our clients’ interests. No matter how sophisticated, well educated, accomplished or capable we are, working virtually has caught many with their pants down, literally and figuratively, with dire consequences.
That’s what happened last fall to legal scholar and media commentator Jeffrey Toobin. At the time of the humiliating incident, Toobin, a graduate of Harvard College and Law School, a best-selling author of several books on legal topics, was a writer for The New Yorker and a respected CNN commentator. Granted, he was not representing clients when he was caught by the not hidden, but apparently forgotten, camera on his computer, but the incident is a cautionary tale nonetheless.
In October, while on a Zoom call with several colleagues discussing a podcast for WNYC radio and The New Yorker about the then upcoming election, Toobin was literally caught with his pants down exposing himself, which he likely did not intend to share with his colleagues. The fall-out for such a high profile and renowned legal personality was swift. WNYC radio, a subsidiary of New York Public Radio, banned Toobin indefinitely from appearing on its programs or podcasts. The New Yorker, where he had been an acclaimed writer for 27 years, investigated the incident and fired him. Toobin is also on a leave of absence from CNN where he was the chief legal analyst and appeared regularly. Because of his celebrity, Mr. Toobin’s situation received high profile attention, including a recent story in The New York Times chronicling his “undoing.” Embarrassing incidents and professional misconduct such as this are increasingly common as lawyers do much of their business online.
In the first ten months since the start of the pandemic shutdowns and transition to remote work, I spent more time in front of the camera handling legal matters than I could have ever imagined in my nearly four decades as a litigator. During this remote work period, my team handled every aspect of litigation and alternate dispute resolution virtually. We interviewed witnesses, handled depositions, argued motions, conducted hearings and arbitrations, participated in settlement conferences and mediation, as advocates and as neutrals. Personally, I served as an arbitrator in three arbitration hearings via Zoom and as a mediator in several settlements. During this challenging period in our practice, I observed and heard about numerous incidents where lawyers failed to meet their professional responsibilities while working remotely, subjecting themselves to potential malpractice claims or disciplinary proceedings for ethics violations. Examples included being unprepared or unfamiliar with various technologies, lacking a back-up plan when systems failed, conducting their work in locations with distractions or where it is difficult to maintain client confidentiality, improperly coaching witnesses during testimony and failing to present a professional appearance or workspace, among other things.
To avoid the embarrassment and potential professional consequences that can arise from practicing virtually, we need to consider the applicable ethical rules of the jurisdictions in which we practice and the forums in which we appear. Here is an overview of some of the ABA Model Rules, on which most jurisdictions rely in promulgating their rules, which are most likely to be implicated as we represent clients remotely. They fall principally in the following four categories: (1) obligations to clients, (2) confidentiality, (3) obligations to others, and (4) supervisory responsibilities. This article focuses mainly on our ethical obligations to clients and the duty to maintain information we learn in the course of representing clients.
As lawyers, representing clients to the best of our ability is paramount. Our duties relating to competence, diligence and communications are key to maintaining a professional relationship with people who entrust their legal matters to us. ABA Model Rule 1.1 requires a lawyer to “provide competent representation to a client” which is defined as “requir[ing] the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” In the current environment, competence means having the necessary skill to work remotely, to use virtual platforms and other technologies to keep up with matters.
I have been dumbfounded by how many lawyers still do not use email or respond promptly to voicemail messages, especially when they are not able to work in their offices and no one else is there to answer the phone. In a matter in which I am currently involved, counsel said he could not serve discovery within the generous time provided because he did not know how to use the computer! Amazingly, he did not think that he could engage someone to help with that remotely; instead, he expected to be able to delay until the situation permitted him to have his staff physically present in the office so he could stand over someone’s shoulder and dictate the discovery. For those of us who have been practicing long before cell phones, laptops, personal devices and voicemail were ubiquitous, navigating even more technology advances may take patience and persistence. But failure to become proficient in the technology necessary to communicate or to have appropriate support so you can respond in a timely manner is an invitation for malpractice and ethical issues.
A close cousin to competence is diligence. ABA Model Rule 1.3 requires that “A lawyer shall act with reasonable diligence and promptness in representing a client.” It sounds simple, but many lawyers do not consistently comply. Failure to respond to clients and others within a reasonable time under the circumstances leads to client frustration, anxiety and worse. The obligation to respond is even more acute when working remotely as people are more stressed than usual during this tumultuous time. According to the Comments to Rule 1.3, we are still obligated to be diligent notwithstanding “personal inconvenience.” Again, I am disappointed by how many lawyers are not reliably reading emails, listening to voicemails or responding to communications from clients or other counsel. One morning I woke up to an early email from a Judge requesting my availability for a last-minute virtual oral argument only two hours later. What would have happened if I did not relentlessly check email (even more compulsively during the pandemic) and if I did not respond quickly to the court? Diligence requires even more of our attention as we work away from the office and without the support of colleagues down the hallway.
The third important duty arising from the lawyer-client relationship that is integrally tied to diligence is maintaining communication. Nothing is more frustrating to a client than waiting to hear from their lawyer. ABA Model Rule 1.4 mandates, among other things, that the lawyer “promptly inform the client” about decisions to be made; “reasonably consult with the client” about achieving client’s objectives; “keep the client reasonably informed” and “promptly comply with reasonable requests for information.” The Comments recognize that sometimes we cannot respond substantively as quickly as we would like. In that event, lawyers are required to be sure they or their staff “acknowledge receipt and specify when response can be expected.” We must be vigilant now, more than usual, to monitor incoming communications, to keep clients up-to-date on the status of their matters and upcoming deadlines, and to make sure we acknowledge their communications to us swiftly even if we cannot provide complete responses until a later time. Even in the best of times, clients are more likely to assert malpractice claims or file disciplinary claims against counsel whom they perceive as unresponsive. Keep the lines of communication open for their benefit and yours.
Confidentiality is the linchpin of the trust needed for an effective lawyer-client relationship, and for that reason, we address it separately from the duties of competence, diligence and communication. ABA Model 1.6 codifies a lawyer’s duty to preserve client confidences, which has three major principles: (1) the duty to “not reveal information relating to representation of a client” except it specific circumstances where permissible; (2) the right to “reveal [client information] to the extent the lawyer reasonably believes necessary” to prevent an array of bodily and financial harm, to seek advice about lawyer’s own performance, to comply with law or court order, and to prevent conflicts; and (3) the duty to “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, [client information].”
Protecting confidentiality under the ethical rules is broader than attorney-client privilege, which is an evidentiary rule that protects against the compelled disclosure of confidential information conveyed to the lawyer for the purpose of providing legal advice to the client. Failing to preserve attorney-client privilege will likely constitute a violation of Rule 1.6, but not everything covered by the rule is necessarily covered by attorney-client privilege. Remote working during the pandemic has increased the risks of violating Rule 1.6 as there are more ways to run afoul of it if we are not working in our professional offices. For example, lawyers are responsible for maintaining cybersecurity, and that may be harder do to when using your home Wi-Fi system.
You need to assure your home system is password protected and that others do not have the ability to access client information. In addition, you need to have reliable access and backup if those systems fail so that information is not lost or shared with outsiders. Even more basic than that is dealing with family or friends with whom you cohabit or work proximately. You must assure that others in your household or vicinity cannot overhear your conversations with clients. Similarly, if you have limited facilities, you cannot share devices or workspaces without risking divulging confidential information to others.
Many lawyers were not set up to work at home with partners also working, children engaging in homeschooling, or others moving in during quarantine. I was working on a matter during the pandemic in which I was participating in a virtual meeting with over 100 participants. The host, with the credentials to control the meeting, finished his presentation, and left his home office for a brief break just as I was to start my segment. Seconds into my remarks, the meeting ended, abruptly cutting off the sizable attendees. It took 45 minutes to get everyone back online, at which point we learned that the host’s college-aged son grabbed the free computer and closed all applications to sign on to his school’s platform, which ended our meeting. His son had access to all the information that was on the screen because the computer was left unattended. You can imagine the potential harm if client confidences are accessible to those without the right to access them or the duty to keep them private. It may not seem important, but under ABA Model Rule 1.6, we need to safeguard client confidential information from our spouses, companions, parents, children, roommates and any others with access to our remote workspace.
Another way in which lawyers may jeopardize client information inadvertently is when they are involved in online proceedings. When we join virtual platforms, we are prompted to activate audio and video and are given the option of muting and unmuting our audio or blocking our video while still being able to see and hear others. We also have the option of retreating to break out rooms with select participants. Many of us are not accustomed to working this way and are still adapting. If we “forget” that we can be seen and heard, we may reveal information we did not intend to share and are barred from sharing under our ethical obligations.
I heard of a matter where the parties took a break during an arbitration, and the arbitrator overheard counsel coaching a witness on changing the testimony, which is also improper. The lawyer waived privilege, shared confidential information and breached his duties to the client. That incident resulted in a preclusion order and striking of testimony. It may very well also have affected the arbitrator’s perception of overall credibility for that side’s witnesses with consequences for the outcome. In another case, during a break, co-counsel starting discussing the weaknesses in their position while the opposing counsel and judicial officer could hear them because they failed to mute their audio. The judicial officer immediately alerted them to their faux pas, but by that point confidences had been divulged. We must be vigilant to assure that we don’t let the proverbial cat out of the bag unintentionally.
A discussion of our professional duties when working remotely would not be complete without addressing the way we present ourselves on screen. In the past months, after observing lawyers and witnesses from the neck up for hours, I am still shocked when someone stands up to reveal that despite the tie and jacket, or the sweater and scarf seen on screen, from the waist down they are sporting pajamas, yoga pants, or just underwear. If you are going to show up only partially dressed, don’t stand up until your video is turned off. What we can also control is how our workspace appears to others. During virtual sessions, I have been able to read papers on people’s desks (a problem under Rule 1.6), and observe desks that reflect a hoarder’s mindset (conveying the impression that the person may not be diligent under Rule 1.3 or communicating timely under Rule 1.4). The same applies to desks littered with food, dirty plates and several coffee mugs. It’s hard to imagine the person behind the desk is on top of their game amidst a mess.
We are likely to continue to participate in virtual proceedings for many months at least and potentially even more after the current crisis abates. While we juggle around-the-clock home/work life, we likely won’t have as much balance as we would like. One thing we can do to minimize our own stress and reduce our risk of committing ethical breaches is to follow the rules of professional conduct that provide the foundation of our client relationships: be competent; remain diligent; communicate promptly and preserve confidences. Good luck and good health as we tackle practicing during the pandemic and beyond.
Reproduced with permission from the February 18, 2021 of The American Bar Association’s The Woman Advocate. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.