Volume 36

Practicing Ethically in Virtual Environments and the Rise of Remote Proceedings in a Post COVID-19 Era

by Margaret Romanin

Nearly every aspect of society was affected by the Coronavirus Pandemic (“COVID-19”). Along with the millions of lives lost and affected by the virus, most businesses and industries were forever altered; the legal community was no exception. This Note focuses on the recent move towards virtual legal proceed- ings and electronic communications between lawyers and clients, driven primar- ily by COVID-19, and its effects on due process rights and the ethical and professional codes of conduct. While legal articles exist which discuss the possi- ble due process implications regarding virtual court proceedings pertaining to the right to in person hearings, there is less discussion addressing the data privacy, evidentiary and ethical implications of virtual court proceedings. These concerns are addressed in the Model Rules of Professional Conduct (“Model Rules”) as they dictate how lawyers communicate with clients, safeguard client’s confiden- tiality, and competently represent clients. This Note will focus on how a practi- tioner’s ethical duty to represent their client can be altered in a virtual environment, while also focusing on ways jurisdictions have adapted to these challenges and ways to move forward. First, this note will provide a brief over- view of the CARES Act and the increased use of virtual legal proceedings. Part Two of this note will examine the due process concerns of these virtual proceed- ings. Part Three will examine the data and cybersecurity implications, which im- plicate various Model Rules of Professional Conduct such as Rule 1.6 regarding client confidentiality and Rule 1.4 pertaining to client communications. Part Four will provide an overview of general witness credibility and presentation issues in virtual proceedings and competency under Rule 1.1. Part Five will provide possi- ble solutions and effective tools for practitioners to utilize to meet the ethical requirements while representing clients in an increasingly virtual and complex environment.

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