No.25 Professional Standards when Appearing in Court Remotely

1. Introduction

1.1 Who should read this Guidance Statement?

This Guidance Statement is for solicitors and law practices.

1.2 What is the issue?

One response of the various Courts and Tribunals to the COVID-19 pandemic, was to allow solicitors to more regularly appear remotely via the use of visual and audio technology.  Many practitioners welcomed this change.

However, it is important to remember that the highest standards of professionalism and the requirements of the ASCR apply equally to those hearings conducted using technology as to those hearings where the parties attend in person. The over-riding principle for practitioners is that the same professional expectations and ethical duties apply to remote appearances as apply to in-person appearances.

1.3 Status of this Guidance Statement

This Guidance Statement is issued by the Queensland Law Society (‘QLS’) Ethics and Practice Centre for the use and benefit of solicitors.

This Guidance Statement does not have any legislative or statutory effect. By having regard to the content of this Guidance Statement it may be easier for you to account for your actions if a complaint is later made to the Legal Services Commission.

This Guidance Statement is not legal advice, nor will it necessarily provide a defence to complaints of unsatisfactory professional conduct or professional misconduct. 

This Guidance Statement represents a standard of good practice and is endorsed by the QLS Ethics Committee.

2. Ethical principles

ASCR   

Rules 3, 4, 9 and 18 provide:

3. Paramount duty to the court and the administration of justice 

3.1 A solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty.

4. Other fundamental ethical duties 

4.1 A solicitor must also: 

…

4.1.2 be honest and courteous in all dealings in the course of legal practice; 

4.1.3 deliver legal services competently, diligently and as promptly as reasonably possible; 

4.1.4 avoid any compromise to their integrity and professional independence

…

5. Dishonest and disreputable conduct

5.1 A solicitor must not engage in conduct, in the course of practice or otherwise, which demonstrates that the solicitor is not a fit and proper person to practise law, or which is likely to a material degree to:

5.1.1 be prejudicial to, or diminish the public confidence in, the administration of justice; or

5.1.2 bring the profession into disrepute.

9. Confidentiality 

9.1 A solicitor must not disclose any information which is confidential to a client and acquired by the solicitor during the client’s engagement to any person who is not: 

9.1.1 a solicitor who is a partner, principal, director, or employee of the solicitor’s law practice; or 

9.1.2 a barrister or an employee of, or person otherwise engaged by, the solicitor’s law practice or by an associated entity for the purposes of delivering or administering legal services in relation to the client, 

EXCEPT as permitted in Rule 9.2.

…

18. Formality before the court 

18.1 A solicitor must not, in the presence of any of the parties or solicitors, deal with a court on terms of informal personal familiarity which may reasonably give the appearance that the solicitor has special favour with the court.

3. Relevant Considerations

3.1 Changes following the pandemic

The Courts responded to the COVID-19 pandemic by more regularly allowing legal representatives to appear remotely in court proceedings by using various technologies.

Indeed, the Courts encouraged practitioners¹ to minimise the need for physical attendance in courtrooms by instead:

1. using telephone or video link to make applications and call witnesses wherever possible;
2. making applications on the papers where that is feasible;
3. minimising the number of people attending court for any given matter;
4. resolving issues to the greatest extent possible, to reduce the time for which any presence in court is required;
5. resolving matters wherever possible, particularly having regard to the difficulties which are likely to confront the conduct of litigation over the ensuing months.
   
   

All practitioners should be, and should remain, familiar with the relevant Practice Directions which apply in each jurisdiction. At the time of publication of this Guidance Statement, these include:

• Supreme Court – Protocol for Applications
• District Court – Notice to legal practitioners in relation to the resumption of in-person hearings in civil proceedings during the covid-19 pandemic
• Planning and Environment Court – Appearances other than in person on reviews/applications
• Magistrates Court – COVID-19 Court Arrangements
• QCAT – QCAT - COVID 19
• Family Court – Virtual hearings
• Federal Circuit Court – Virtual hearings
  
  

Whilst there has more recently been a return to the general requirement for attendances in person for most hearings, this Guidance Statement provides ethical considerations for appearing in court remotely where:

1.  practice Directions permit a practitioner to appear by telephone or video-link; or
2. leave has been granted to a practitioner to appear by telephone or video-link.
   
   

3.2 A solicitor’s duty to the court and the administration of justice is paramount

A solicitor’s duty to the court and to the administration of justice is paramount, regardless of whether the solicitor is appearing in person in the courtroom or appearing remotely.  There is no relaxation of this paramount duty, simply because the method of appearance before the court has changed.

Compliance with this duty, when appearing in court remotely, would include that the solicitor:

1. ensures that there is no erosion of the perception of the authority of the Court, just because the method of appearance has changed;
2. is courteous and respectful to court staff who assist in facilitating the remote appearance;
3. is always immediately available during any and all timeframes required by the court for the remote appearance;
4. ensures that administration staff who may receive calls from the court are, when possible, made aware in advance of the call and instructed as to any formalities required by the court when taking the call;
5. is always dressed and groomed appropriately;
6. is familiar with any relevant Practice Direction;
7. is familiar with how to use and operate competently the court’s preferred systems of audio or audio-visual technology for remote appearances;
8. refrains from using inappropriate filters and backgrounds graphics;
9. is punctual and well prepared.
   
   

3.3 A solicitor must be courteous in all dealings and must deliver legal services competently and avoid any compromise to their integrity

Compliance with this duty, when appearing in court remotely, would include ensuring that the solicitor:

1. is courteous to the Court and to colleagues and does not revert to using informal or discourteous language;
2. makes allowances for the limits inherent in the technology, by taking greater care to speak clearly and audibly, and to take greater care to avoid interrupting the Court or other parties when speaking;
3. remains on mute when not speaking;
4. does not allow background noise or background activity to interfere with the Court process;
5. does not appear to take the matter any less seriously just because the solicitor is not appearing in person or is on the telephone and cannot be seen;
6. does not have other applications or devices unnecessary for the appearance operating while appearing remotely;
7. does not undertake other tasks simultaneously (eg: receiving or sending text messages, having a discussion with a colleague with the microphone muted) with appearing remotely; in addition to detracting from a practitioner’s performance as an advocate, the distraction will be obvious to the court and (rightly) taken as discourtesy;
8. takes steps to eliminate distractions at the place from which they are appearing;
9. if clients or witnesses will also be involved in the appearance, explain the process to them and ensure that they are also familiar with the formality and technology necessary to appear.
   
   

3.4 Preparation

Given the limitations of remote conferencing technology, it is likely that written material will carry more weight than it does in standard hearings. Solicitors should ensure that material filed with the court for use in remote hearings is concise, clear and states the case without the need for expansion via oral submissions. The temptation to include too much should be resisted however; remote hearings are not hearings on the papers.

During a remote hearing, it may be necessary to access more than one document at a time, while maintaining contact with the courtroom; it is essential that these documents are readily accessible, and practitioners appearing remotely should ensure that this is the case. If possible, the preparation of a fully electronic file, accessible on a separate device or screen, is recommended.

Liaising with your opponent beforehand can make remote hearings more efficient, allowing practitioners to, for example:

1. agree on a reference system/key for documents to enable them to be found easily by all parties without the need for screen-sharing or holding documents up to the camera;
2. agree on a method of objecting/interjecting (subject to the court’s approval) as standard verbal methods may not translate well to video technology which can exhibit delayed sound or images;
3. agree on a method of sharing documents that become relevant but are not in the filed bundle or otherwise before the court.
   
   

3.5 Punctuality

It is important that all practitioners remain punctual when appearing before the Court by remote means.

Compliance with this ethical obligation, when appearing in court remotely, would include that the solicitor:

1.  is always immediately available during any and all timeframes required by the court for the remote appearance;
2. is familiar with how to use and operate competently the court’s preferred systems of audio or audio-visual technology for remote appearances;
3. does not schedule other activities concurrently with the remote appearance, or so closely proceeding/following it that inadequate time is allowed to accommodate delays experienced by the court in starting, or the matter running over time;
4. has notified their administrative staff of the time of the hearing and the need for their line to be free at that time.

 
Justice Henry of the Supreme Court of Queensland has provided some useful tips on minimising the risk of delays and interruption during remote appearances:

“Technological failure or defect is an ever–present risk. It cannot be entirely eliminated. You cannot control all of its potential causes but you do have some control, at least at your end of the call or link. How can you minimise the risk and impact of technological failure or defect at your end? 

You can take the following steps: 

• Liaise with the court to ensure you know how to connect with it, checking what programme you should be using and what the dial in arrangements are. 
• Invest in and maintain effective devices and connection capacity. 
• Familiarise yourself with the technology you will be using. Practise using it. 
• Find your mute button. Practise using it. 
• Ensure your speaker is working to ensure you can hear what is said in the courtroom. Consider reducing the risk of feedback by acquiring and setting up headphones for use during the appearance. In ear rather than over the ear headphones will be less visibly distracting to your audience. 
• Do a test run of your connection with the court. 
• Establish your connection early enough to give yourself the time to try and solve technical problems and have the connection in place by the time the court calls your matter. 
• Plan for the event of technological failure. Ascertain what the court wants you to do if the line or link fails and needs to be re-established. Make sure you have means of contacting the court alternative to the device you intend to use for your appearance. Consider how you may access fallback remote appearance options if the one you plan to use fails.”²
  
  

3.6 Advocacy

It is important that all solicitors still only make appropriate and competent submissions when appearing before the Court by remote means.  It is of course not appropriate for a solicitor appearing remotely to make a submission that they would not make in person.

For comments about effective advocacy by telephone and video-link, see Henry J’s “Effective Advocacy by Telephone & Video-Link”³ As His Honour observed:

“As with advocacy when appearing in person, proper preparation for remote advocacy is critical. As with any form of advocacy, it is important to invest time in preparing the substance of what you will be advocating – marshalling and mastering the relevant law and facts – as well as engaging in performance preparation, preparing how you will perform as an advocate during the appearance.”⁴

“As with any form of advocacy it is the substance of what you say which counts most. Advancing structured, concise and clear submissions which go to the real issues is important in all forms of advocacy in the law. However, it is especially important during remote appearances because of the distractions and communication limitations of remote advocacy. You may not be able to control a technical hiccup, but you can control what you say and how you say it.”⁵

3.7 Confidentiality

A solicitor must not disclose any information which is confidential to a client and acquired by the solicitor during the client’s engagement.

Compliance with this duty, when appearing in court remotely, would include that the solicitor:

1. ensures that no other client files can be seen in the background of any visual appearance;
2. ensures that the court appearance cannot be overheard by other people in the solicitor’s office, home or other environment;
3. ensures that no other conversations can be overhead by the court;
4. does not record the court appearance;
5. ensures that appropriate cyber-security measures are in place to prevent breaches of confidentiality.
   
   

3.8 Facilities

When appearing remotely, a solicitor should ensure that the facilities available at the remote location are sufficient to facilitate the appearance, including:

1. internet access of sufficient speed, clarity and reliability to support the appearance;
2. access to enough screens, headsets and other devices to accommodate the demands of the appearance;
3. access to break-out rooms and secure discussion spaces should they be necessary; 
4. ensure your devices are fully charged or capable of being connected.

4. More Information

• Video Conferencing - What you should consider?
• Look Behind You 
• Cybersecurity resources
  
  

Solicitors are also referred to the Queensland Law Society, The Australian Solicitors Conduct Rules 2012 in Practice: A Commentary for Australian Legal Practitioners, Queensland Law Society (2014).

For further assistance, including difficulties you may be experiencing as either a supervisor or as a practitioner who is being supervised, please contact an Ethics Solicitor in the QLS Ethics and Practice Centre on 07 3842 5843 or ethics@qls.com.au or a QLS Senior Counsellor.⁶

1 Queensland Courts, Notice to legal practitioners in relation to the COVID-19 pandemic (Web Page) <https://www.courts.qld.gov.au/about/news/news233/2020/notice-to-legal-practitioners-in-relation-to-the-covid-19-pandemic>.