“The more things change, the more they stay the same,” said Meg Christensen, managing partner of Dentons Bingham Greenebaum’s Indianapolis office during the 30th annual Dentons Legislative Conference on Wednesday.
Although the world – and the practice of law – has shifted to a “new normal” due to the COVID-19 pandemic, the standard of professionalism remains unchanged, she said.
Emphasizing that point, Christensen led a breakout session titled “Navigating Ethics in the ‘New Normal,’” at the Dentons LegCon event hosted at the Indiana Convention Center in Indianapolis.
Equally balanced by laughter and sincere cautions, Christensen reminded attorneys in attendance about the dangers of allowing comfort and convenience exacerbated by the pandemic to bleed into professionalism.
Topics discussed at the legal ethics session included competency and technology; recording proceedings; ex parte communications; coaching virtual witnesses; judicial notice in the digital age; and confidentiality concerns.
Starting on a light-hearted note, attendees chuckled as they watched a scene from “My Cousin Vinny” as the judge admonished fictional New York attorney Vinny Gambini for underdressing in the courtroom by wearing a black leather jacket.
“We have all had a year of experience attending Zoom hearings and I’m sure I’m not the only person who has seen someone show up in their gym clothes,” Christensen said. “The ethics lesson when I think about this is that the court is the place where we administer justice. Even if you are on Zoom.”
Thinking about ethics in the “new normal,” Christensen said some issues have been around since before the pandemic.
“Attorneys have always owed courtesy and deference to the court and to the environment of the court and now the courtroom can be a bigger and larger place than it used to be,” she said.
On the issue of competency and technology, Christensen pointed to Indiana Professional Conduct Rule 1.1, requiring all attorneys to maintain competence by keeping abreast of changes in the legal practice, including those related to technology.
Everyone was forced to utilize Zoom or other virtual platforms for connection at the beginning of 2020, Christensen explained, and as a result lawyers had to learn and adapt to the inner workings of those technologies and learn how to avoid others breaking into password-protected sessions and acting unsavorily, among other things, which could in turn interrupt proceedings or prejudice clients.
Hence, Rule 1.1, she said.
“That’s not to say that every time you have a little mess up that you have committed an ethical violation, but if day-in and day-out the practice in your area is now for people to meet by Zoom and you can’t figure it out, then you do have a technological competence problem,” Christensen said.
To emphasize that point, she played the now-famous “cat lawyer” clip of an attorney who accidentally joined the video conference of a civil forfeiture court hearing while using a Zoom filter that made him appear like a fluffy white kitten.
“The lawyer didn’t sign into his computer early enough to understand he was a cat. He is not an ethically incompetent lawyer, but if he does it again the next week and then the next, then that will raise some questions,” she said.
Christensen next addressed coaching virtual witnesses, tapping on an issue in which witnesses during a deposition will look to someone off screen in the same room for an answer before responding to questions.
“If you are someone’s counsel, my advice would be before you question a witness, ask them, ‘Is anyone in the room with you? And you understand you are under oath and these are your answers and no one else’s,’” she said. “If I am representing that witness, I can’t do anything sitting next to them in that Zoom room that I couldn’t do in live court.”
In a failed attempt of such a violation, Christensen said she has seen attorneys use the message chat on Zoom or other platforms to tell a client how to testify, only to have forgotten to change the settings to a private chat.
Christensen also broached the issue of confidentiality, calling it the most important piece of all rules of professional conduct. She cited Rule 1.6(a), requiring lawyers “to not reveal information relating to representation of client unless the client gives conformed consent.”
Wrapping up with a more consequential video to tie together the various issues discussed, attendees watched as a shocked Louisville judge hold a lawyer in contempt for storming out of a Zoom plea hearing after disparaging her client and being denied a motion to withdraw as counsel.
“If you act like this during hearings, wherever you are, you will get a reputation and will lose your credibility,” Christensen said of the attorney. “And over time that will prejudice your client.”