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COVID-19: The Virtual Reality

Q. I haven't been infected with COVID-19, but I'm already sick of this virus. My firm isn't set up for remote work, courts are closed, and I feel paralyzed. Any advice?

A. Be thankful for your health. But this pandemic is testing the health of our law firms and of our entire judicial system.

Though no one could have foreseen a crisis of this magnitude, a global state of emergency won't suspend your duty to provide competent and diligent representation. The rest of the world may be shutting down, but our professional obligations remain.

Under Rule 1.1 of the Rules of Professional Conduct, "Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." To be fully prepared to represent our clients, we must prepare for situations which may threaten our ability to do so.

This takes more than keeping current with the law. We cannot bury our heads in the books and ignore changes in the world around us. Considering the impact of technology on the practice of law, the American Bar Association recently revised its comment to Model Rule 1.1 to require that competent lawyers keep abreast of "the benefits and risks associated with relevant technology" as well.

The days of the Luddite lawyer proudly clinging to the practices of the past are over. To provide competent representation, we must give our clients the benefits of technology designed to improve the efficiency of our practices and the stability of our firms in times of chaos.

If your use of technology is limited to word processing and email, you cannot pretend to provide competent representation in a world that offers so much more. Had you kept current with technology, you would:

Use Case Management Software – there are numerous programs which will provide easy online access to all client matters, keep an organized rolodex of contacts, maintain all of your communications in chronological order, automate the drafting of many documents, and reduce your trips to the filing cabinet.

Scan Important Documents – if you're not scanning pleadings, discovery, relevant evidence and other important materials to your computer, what would you do in the event of a fire or other catastrophe that blocks your access to the original files in your office? At a time when courts are moving toward electronic filing, there is simply no need to cling to that highly-flammable technology known as "paper."

Use Accounting Software – manual time sheets and handwritten ledgers are relics of the past. Modern law firms rely on programs that keep track of their lawyers' time, generate pristine invoices, and manage operating and trust accounts. Whenever you get a retainer, receive a payment, or write a check, these programs will account for all transactions, enabling you to generate ledgers, income statements and other reports at the push of a button. There's no need to rely on pen and paper, or to invite the mistakes that come with them.

Enable Remote Access – lawyers who have remote access to firm resources have a distinct advantage over those who don't. If your firm isn't set up for remote work, how can you provide competent and diligent representation at times like these?

Protect Your Systems – your computers can't catch COVID-19, but other viruses may wreak havoc on your systems without the right protection. Whether you are a large or small firm, an IT consultant who serves law firms will help you implement systems to resist hackers, malware and other problems that may impair the privacy and security of your data.

Backup Your Data – a fire or flood can destroy your hard drives just as easily as your paper files. Despite all of the cautionary articles on the ethics of online storage services, competent lawyers use the "cloud" to preserve access to vital data. For redundancy, you may also backup your data to portable media that may be taken off-site every day. No system is impenetrable, but lawyers who lack any system at all place client data at far greater risk.

Train Your Staff – as part of your duty to supervise others within your firm, you and your IT consultant should train your staff on best practices to minimize risk and to enjoy the full benefits of technology.

This isn't an overnight process. But if you take these steps, you will strengthen your practice and preserve your ability to serve your clients when they may need you the most.

Unfortunately, the judicial system in which we operate has made this mission more difficult. Sworn to administer justice in a manner that "ensures the greatest possible public confidence," ​see Preamble to the ABA's Model Code of Judicial Conduct, judges preside over a system that is now closed to the public. Unable to work from home, or to use technology to assist in the adjudication of cases, the Judiciary has done little to ensure the confidence of criminal suspects who must wait behind bars for courts to reopen, of detained immigrants whose cases have been postponed to next year, or of clients whose requests for prompt relief cannot penetrate the locked doors of the courthouse.

Rather than offer them the benefits of modern technology, the Judiciary has long shunned its use. Indeed, more than 150 years after the invention of the telephone, many courts still maintain a docket of "status conferences," "calendar calls," and "scheduling conferences" which could be handled more efficiently in a simple conference call. Considering all the technology available for video conferencing and other communications, judges have more tools than ever to conduct these proceedings, and even more substantive hearings, from the comfort of their own homes.

Ignoring these tools, the Judiciary has cluttered its dockets with unnecessary proceedings, increased the expense of representation, and reduced access to justice. Electronic filing systems are a step in the right direction, but the lethargic adoption of these platforms hardly excuses the neglect of far more powerful technology. We are all paying the price for it now.

As the Judiciary scrambles to take "emergency measures" in the course of this crisis, it would do well to recognize that efficient access to justice is always a matter of urgency. Our legal system will survive this pandemic. But for it to thrive, lawyers and judges must use all available tools to ensure that the doors of justice never close again.
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