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Ethics during the pandemic: Avoiding Faustian bargain | Joël Roy

Wednesday, June 24, 2020 @ 8:51 AM | By Joël Roy

Joël Roy %>
Joël Roy
As trial attorneys, to say our professional (and, often, personal) lives have been turned upside down by COVID-19 would be a major understatement. Postponed trials, anxious clients and a growing sense of helplessness have surely marked our practices in these troubled times. Yet, many of us see the justice system’s increased openness to technology as one potential silver lining. Indeed, courts now seem more and more willing to engage in remote hearings, virtual discovery and e-filing, which is truly something to celebrate amidst the otherwise chaotic state of litigation across the country.

However, with new options always come new responsibilities, and one must surely take a good hard look to see whether these more efficient ways to proceed are always the best thing to do for one’s clients. Sadly, it appears a blanket adoption of technology might be just as mistaken as its total rejection.

Let us take care of the commonsensical first. As a general rule (which always has exceptions), I see very little to argue against remote hearings for matters that only involve questions of law. This would cover about 80 per cent of preliminary motions in civil matters, for which witness testimony and/or the assessment of conflicting evidence is rare. In these cases, technology should be seen as a great tool to streamline the process while increasing access to justice: if dozens of lawyers are not waiting their turn in motions court, it follows that dozens of clients are not paying them to wait.

This time would certainly be better spent in their respective offices, where they could deal with other matters. Now, the downside is obviously that virtual hearings do not allow an effective litigator to “read the bench” as well as she normally would, and personal flair or appeal might be lost over the medium. Overall, however, it appears clear that saving hundreds of dollars on unnecessary and avoidable fees should take precedence over the potential effect of making an impression in a live hearing for most clients.

It is, however, in more factual matters that things become more complicated. This is even more true in trials where the court’s assessment of witness credibility is of the essence. For instance, I doubt that any serious litigator could claim her potential cross-examination of a key witness would be just as effective if she were to stand solemnly in a courtroom as opposed to her living room, maybe even with some friends and family standing offscreen to support her.

I also wonder whether a member of the bench could claim to read a witness as effectively despite the counter-plunging angle of her laptop, her dangling headphones cord and the shadowy backlighting brought by her decision to place herself in front of a window. As much as I loathe saying this, the solemnity of the courthouse serves a purpose, and one could reasonably think that the pressure to tell the truth would be lesser in one’s controlled environment.

These facts place the post-COVID litigator between the proverbial rock and hard place. Despite most of us realizing and supporting the value and efficiency gains of virtual hearings in general, we might be placed in situations where the ethical choice would be to advise against holding such a hearing. This also means that to discuss its implications and cost-benefits aspects with our clients should most likely become routine. Considering the financial and emotional costs of litigation, it is definitely possible that some reasonable clients will choose not to sacrifice efficacy for efficiency and instruct their attorneys to require a live hearing. This is a right they should have a chance to invoke.

Now, this can become delicate in situations where judges indiscriminately choose to push for remote hearings, seeing the efficiency and sanitary gains before the effect on the parties’ case. Since our primary purpose remains, pandemic or not, to be the zealous advocates of our client’s position, we might have to resist this and educate the court of our reasons for doing so. This will most likely lead to some interesting jurisprudential developments, as no decision on the court’s power to compel an unwilling party to proceed electronically has yet to be rendered in Canada, at least to my knowledge.

It is definitely a strange time to be a lawyer, and the true test of ethics always lies in adapting known principles to new problems. Of course, one cannot halt progress, and we could very well imagine a world in which the formal live hearings of yore become the exception left only to high-stake matters such as criminal jury trials. This might even be a good thing, but it shall be a choice made in the ballot box rather than in the courtroom. In the meantime, we will have to do our best to be as progressive and adaptive as we can, but perhaps only as long as our clients’ rights remain unscathed.

Joël Roy is an attorney at Mercier Leduc specializing in ethics and disciplinary law in the context of medical technologies and AI.

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