4 minute read | July.29.2020
A century ago, the Spanish Flu ravaged the globe and impacted the legal industry in ways not dissimilar to what we are seeing today. Trials could not be held as attorneys and judges contracted the virus, courts — including the Supreme Court — closed, and juries could not be assembled. Today’s jurists and the legal industry have a number of tools available that, at least at first glance, appear to keep the industry up and running. However, even as many courts embrace these new tools — namely video and teleconferencing — the push to require attorneys to use them has revealed their many limitations.
When clients cannot use remote connection applications
Individuals awaiting trial and those in a supervised release program often are not allowed access to computers or the internet. That means they also cannot use videoconferencing software like Zoom, LoopUp, and Skype that have become a staple of pandemic communication.
This issue came up recently in the criminal prosecution of Michael Avenatti. According to his lawyer’s status report, Avenatti’s bail conditions prevent him from communicating by videoconference, making it difficult to review the extensive discovery in the case. Avenatti’s lawyer also noted that his age and health place him in a high-risk group for contracting Covid-19, and that he was therefore unable to meet with his client in person. In the court’s subsequent order, the judge suggested instead loading discovery onto a laptop without communication capabilities for Avenatti’s review. The judge later ordered an examination of the laptop to ensure that Avenatti had not somehow found a way to use it to communicate.
Lack of access extends beyond criminal defendants with release conditions and attorneys with age or health concerns. Many clients live in locations with limited or cost-prohibitive high-speed internet access, making videoconferencing over cell connections difficult even if they have smart phones with sufficient data plans. And visiting clients in person, whether a criminal defendant or not, often requires significant travel and hotel stays. Given what we know about Covid-19’s infectivity and virulence, coupled with prevention guidelines, many attorneys — regardless of age and health —balk at in-person meetings. As a consequence, clients and their attorneys can be denied a meaningful way to prepare for critical aspects of trials, litigation, or investigations such as document review and deposition preparation. In essence, attorneys are asked to choose between representing their clients and maintaining their own health and safety.
Videoconferencing is not perfect even in ideal conditions
Videoconferencing is a poor substitute for meeting a client in person. It distorts or diminishes critical nonverbal components of human interaction, such as body language, eye contact, and tone, which may affect attorneys’ ability to build rapport with their clients. Background noise and movement can be constant distractions, as are audio and video interruptions. Attorneys also risk a privilege waiver if they can’t ensure that their clients are in a secure or isolated environment during the videoconference.
The inherent limitations of videoconferencing also complicate attorneys’ ability to assess how clients and witnesses will perform on the witness stand. Those that remain composed during videoconferencing from their homes or in familiar surroundings may act differently in person or on the stand. Videoconferencing allows attorneys to assemble focus groups in order to conduct jury testing, but such an alternative does not adequately mimic the deliberative setting that permits attorneys to observe and understand the process by which jurors reach their conclusions.
Strained communications with incarcerated clients
Attorney communications with incarcerated clients are especially strained right now. Incarcerated individuals do not have reliable access to videoconferencing, so any communications must occur in person, over the phone, or through email. However, each of these other methods can be problematic — particularly during the pandemic.
Many prisons have already shut down all in-person visits, even for legal purposes. Attorneys of all ages and health status have legitimate fears about visiting their incarcerated clients, even if such an option is available, given the staggering prevalence of the virus in prison populations. Prisons also may restrict or suspend phone calls due to restrictions on prisoner movement or reduced staffing.
Attorneys should use caution when emailing their incarcerated clients because the government monitors email to federal inmates, including pretrial detainees. Attorneys need to be aware of the government’s position that all privilege is waived regarding inmate emails, and tailor their communications accordingly.
While videoconferencing and other similar technologies do help attorneys stay in touch with their clients, they are hardly a remedy for the many complications that the pandemic has unleashed.
However, the profession continues to find ways to adapt. The Covid-19 resources page on the American Bar Association’s website compiles helpful tools and includes links to collections of sample motions for extensions and compassionate release provided by the National Association of Criminal Defense Lawyers, the National Association for Public Defense, and state bar associations. The ABA’s Covid-19 Task Force website also contains various practice tools and resource kits for attorneys grappling with the new remote-work scenario, and helps attorneys stay up to date on court access and rule changes caused by the pandemic.