To say that the recent COVID-19 pandemic changed everything would be an understatement. For a period unlike anything in recent history, the world seemed to come to a stop. Cars were no longer seen on the streets, families met at their homes as they waited for further guidance on what exactly the virus was, and in-person gatherings were prohibited all together. This meant that schools were no longer in-person, a visit to the grocery store meant never having to step inside, and restaurants became to-go/pickup establishments. Most importantly courts, lawyers, and legal proceedings all had to adapt in new ways to a changing world. Today, lawyers and attorneys are still learning how to navigate this new environment and deciding how best to adapt to the procedures that have become a mainstay in the practice of law. Understanding how to adapt a law practice, adjusting to the new standards and expectations that have been engrained into the minds of both the courts and clients for decades, will be important as the legal profession continues to move forward into the future and a post-COVID-19 world.
In the Texas Disciplinary Rules of Professional Conduct (“TDRPC” or “Texas Rules”). Instead of the more simple and affirmative language of the Model Rules, the TDRPC’s competence rule states that a lawyer shall not represent a client when the lawyer knows or should know that the legal matter is beyond that lawyer’s competence, unless the lawyer associates with another lawyer who is competent, or the situation is an emergency.[1] Reading the language on its face, Texas does not seem to have any technology requirement as part of its competence rule. However, similar to the Model Rules of Professional Conduct, more clarification is given in the associated comments. Comment 8 addresses the requirement for lawyers to maintain competence throughout their practice careers. Specifically, Comment 8 recognizes that “because of the vital role lawyers play in the legal process, each lawyer should strive to become and remain proficient and competent in the practice of law, including the benefits and risks associated with relevant technology.”[2] It seems that the Texas Rules demand more of lawyers than the Model Rules, stating that Texas lawyers should not only be aware of relevant technology, but to “strive to remain proficient and competent” through the use of those technologies that might benefit and advance their practice.[3]
In practice, it is important to, at a minimum, be aware of new products that may improve a lawyer’s practice and allow them to better serve their clients. However, there are also other important reasons why lawyers should look to incorporate advances in technologies into their firm.
Why is this Important? Because the Constitution Says So
Earlier this summer in Broussard v. State, the Texas Court of Appeals, Beaumont division, heard a case in which a defendant argued that he had received the ineffective assistance of counsel guaranteed to him because, among other things, of his attorney’s reliance of technology throughout the representation.[4] One of Broussard’s primary claims was that because his attorney “was physically absent from the courtroom during the court proceedings and only appeared via remote technology” he was deprived the effective assistance of counsel for his defense.[5] However, the appellate court took notice that at the pretrial hearing Broussard replied affirmatively when the court asked if conducting the hearing by video teleconference was acceptable. The court also noted that the review of counsel’s performance is highly deferential toward counsel’s actions.[6] Next, the appellate court recognized that the trial court had advised Broussard at the sentencing hearing that his counsel had the option of appearing by Zoom, and if they needed to speak privately the court would place them in a “breakout room” to ensure private discussion between counsel and client.[7] After review, the appellate court concluded that Broussard failed to show that the outcome would have changed if he and his attorney had been physically present together in the courtroom rather than appearing virtually.[8]
Speaking specifically on conducting hearing by remote video platforms, a Massachusetts court addressed an argument that this method violated several constitutional rights, including the right to be present for the hearing, to confront the witnesses against and present witnesses in favor, to a public hearing, and the public’s right to attend the proceeding itself.[9] This case saw strong constitutional arguments against the use of videoconferencing and allowed a court to definitively rule on how to approach this new method of litigation. The court in Commonwealth v. Masa noted in its opinion that the circumstances of the pandemic were unusual, and because of them “it was necessary to deny the defendant’s right to face and examine witnesses in the same physical space” due to the health and safety concerns of the coronavirus.[10] This is an example of the court highlighting that the health concerns and dangers posed by COVID-19 were great enough to allow the shift from in-person to virtual.
In Masa, the court found that using Zoom, with certain established safeguards, would continue to protect Masa’s constitutional right of confrontation by continuing to allow for cross examination.[11] The court explained that the essence of confronting a witness is the ability to test and challenge testimony through the process of cross examination.[12] The court also found that there was the ability to allow for public access to the Zoom proceedings in satisfaction of Masa’s other constitutional complaint.[13] In its opinion, the court also took the opportunity to reiterate that Zoom’s features help facilitate private discussions between the criminal defendant and their lawyer through the “breakout room” function.[14]
Though the Sixth Amendment argument failed in the recent Broussard case, and Masa provides an example to a court’s approach to other Constitutional arguments against virtual litigation, it is important for practitioners to be aware of the new claims, arguments, and resolutions that are being made as more and more technology is incorporated in the practice of law. Since courts are adapting to the inclusion of more technology in proceedings, lawyers need to follow suit. It is important not only for lawyers to be aware of how the court may adapt their procedures and shift to virtual hearings, but to utilize these technologies effectively and efficiently in their practice.
[1] TX ST RPC Rule 1.01.
[2] TX ST RPC Rule 1.01, Comment 8.
[3] Id.
[4] Broussard v. State, 09-20-00259-CR, 2022 WL 2056388 (Tex. App.—Beaumont June 8, 2022) (mem. op., not designated for publication).
[5] Id. at 4.
[6] Id.
[7] Id. at 7.
[8] Id.
[9] Commonwealth. v. Masa, 1981CR0307, 2020 WL 4743019 (Mass. Super. Aug. 10, 2020).
[10] Id. at 1.
[11] Id.
[12] Id. at 2.
[13] Id. at 1.
[14] Id. at 6.
