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By Tanner Adkison, 2L, FSU College of Law
As the practice of law has transitioned into a hybrid world of both online and in-person activities, members of the legal profession recognize that functions of the online litigation format could be here to stay in a post-pandemic world. While we will return to normal courtroom trials, the online platform provides a useful tool for the litigation process. The efficiency of being able to conduct a deposition without being in the same location or allowing for witnesses to appear via video conference is still beneficial to the litigation process.
As the legal profession continues to navigate both formats on a day-to-day basis it is necessary to remember that the rules of the Florida Bar do not become less important when the practice of law happens from behind a computer screen. The legal profession will be held to the same high standards as it would be if you were face-to-face with the judge, jury, or opposing counsel. The way lawyers conduct themselves throughout the litigation process will still be governed by rules such as Fla. Bar Reg. R. 4-8.4(d).
A lawyer shall not:
(d) engage in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis, including, but not limited to, on account of race, ethnicity, gender, religion, national origin, disability, marital status, sexual orientation, age, socioeconomic status, employment, or physical characteristic[.]
Lawyers who choose not to abide by Rule 4-8.4(d) on a video conference setting can do the same or more harm to the integrity of the judicial system than if it was in person. Some instances, like the lawyer that went viral online for being unable to turn off a cat filter, can be harmless gaffes that are passed over.
However, others can have a greater impact on the administration of justice. Articles have been written about former Broward county circuit judge Dennis Bailey’s comments of lawyers appearing inappropriately on camera. Some of the issues he cited included a lawyer appearing from bed and lawyers not being fully clothed. This not only damages the reputation of the legal profession but is humiliating to the clients these lawyers represent. It is hardly practical for a judge, jury, or opposing counsel to take matters seriously when someone appears in such a manner.
Fla. Bar v. James, 329 So. 3d 108 (Fla. 2021), provides some insight into how the Florida Bar will approach applying rules to a hybrid litigation process where people are not together. The case sprouts from a deposition that was being conducted by telephone. During the deposition, a lawyer was directing the witness on how to respond to the opposing counsel’s questions by text message. The lawyer then lied during and after the deposition about whether he was in fact engaging in text message communications with the witness during questioning. The actions prompted the Supreme Court to raise the recommended suspension from 30-days to 91-days for violating Rule 4-8.4(d). The Florida Supreme Court stated plainly, “dishonesty in connection with the practice of law is prejudicial to the administration of justice.” The statement is clear and makes no separation about the format of the deposition.
The use of social media to say things that are prejudicial to the administration of justice has received stiff penalties. In Fla. Bar v. Lynum, 2021 Fla. LEXIS 95 (Fla. 2021), the Florida Supreme Court approved of a recommended penalty for disbarment of a lawyer who made numerous Facebook and blog posts that targeted judges and attorneys associated with legal proceedings. The public comments were disparaging and at times threatening. The Court also found emails that harassed members of the judiciary. It is common sense that if you would not make comments in the courtroom, then it would be wiser not to say them outside the courtroom.
Florida is not the only state that is taking social media communications seriously. Louisiana disbarred a lawyer for posting an online petition she authored about judges presiding over her client’s adoption case. In re McCool, 172 So.3d 1058 (La., June 30,
2015). The online petitions criticized the judges’ decisions in the case and attempted to influence future decisions. The lawyer made further Facebook and Twitter posts about the case to both criticize and influence rulings. The Court found that the petitions and posts threatened the integrity and independence of the judiciary and clearly were prejudicial to the administration of justice.
The Florida Bar will take violations seriously no matter where they occur. Just like they have with misconduct on social media or telephone calls. That is why it is important to remember the new challenges lawyers have come to face during this pandemic.
First, a lawyer should never trust the mute or turn off camera button to save you from being heard or seen. There is always a chance of miss clicking the button or the button not working properly. General rule, if you would not say or do something in a courtroom then avoid it during the video conference as well. Second, do not get comfy just because you are not physically present.
It is still important to choose appropriate attire and working environment for video and telephone conferences. Presentation is part of the legal profession and not taking it seriously can prevent effective representation. The ABA Journal should not have to post articles titled, “Lawyers smoke cigars, drink wine during Zoom hearings; litigants appear from hair salon or while driving.”
Third, check everything prior to participating in a video conference. Make sure to check your background, screen name, connection, video camera, etc. It would even be prudent to make sure there are no issues with your client's video conference setup and connection. Anyone can hop on 20 minutes prior and make sure everything is functioning properly and appropriately.
For more information on how to approach the legal profession outside the physical courtroom I would recommend the Legal Fuel podcast episode “Professional Etiquette in the Zoom Era” hosted by Christine Bilbrey and Karla Eckardt.
About the Author
Tanner Adkison is:
a 2L at the Florida State University College of Law.
a member of the William H. Stafford American Inn of Court.
a member of the College of Law’s Student Advisory Board for the Raising the Bar Professional Program.
a new member of the Florida State University College of Law Trial Team.
a former student-athlete at Florida State University.
He holds a bachelor's degree in Business Management and Political Science from Florida State University.