Electronically In Touch

We are pleased to submit the May 2020 issue of Electronically in Touch. This issue consists of articles on a lawyer's virtual court experience during COVID-19, a young lawyer's guide to video depositions, a look into AI in arbitration, the use of remote technology in legal practice, and the readiness of law firms going virtual.

This issue also includes our new regular column, Why I Belong, a column that features NYSBA YLS members and provides a little background on each member in a Q&A format. This issue also includes upcoming virtual events.

Electronically In Touch is a member driven publication. We welcome submissions from members on any relevant topic, including practice tips, substantive legal articles, case updates, work/life balance, and information regarding upcoming meetings and events. Please submit inquiries and articles to Julie T. Houth at jhouth@gmail.com or Mansi Parikh at mansiparikh.1711@gmail.com.

We hope you all stay healthy and safe during these unprecedented times.

By Shauna Tesser-Friedman, Esq.

COVID-19 has impacted nearly every facet of our lives, and the tidal wave of consequences can be felt in almost every economic, social, educational, and governmental sector.

As a family law attorney, the pandemic has particularly troublesome implications for some of my clients, as one of the ramifications of "stay at home" orders and movement restrictions is a potential uptick in domestic abuse. As reported in The New York Times, attempts to stop the spread of the virus "may be making violence in homes more frequent, more severe and more dangerous." A New Covid-19 Crisis: Domestic Abuse Rises Worldwide, Amanda Taub, April 6, 2020.

Obtaining a Temporary Order of Protection for a client can be a powerful tool to help defend against domestic abuse, as it can, among other things, direct an abuser to "stay away" from the victim, other family members (including children), the home, the school, and one's place of employment. In fact, my client recently needed such protection.

But how could one obtain this relief during a pandemic with so many public services either in flux, halted, or shut down completely?

With Chief Judge of the State of New York Janet DiFiore at the helm, the New York Courts rose to the challenge by implementing new age technology in place of traditional courtroom settings. When it was no longer safe for Court appearances to be conducted in person in a physical courtroom, Chief Judge DiFiore acted by immediately applying systems to triage the emergency "essential matters," which included emergency health, safety and welfare issues, in a virtual courtroom. These endeavors have largely been successful and the scope of virtual courtrooms has now expanded to also hear less urgent matters in order to keep the wheels of justice moving.

Because of these efforts, I was able to present an emergency application for my client in an entirely virtual setting. My client and I were able to communicate from our respective homes by e-mail and telephone. Thanks to Governor Cuomo's Executive Orders (202.7 and 202.14), my client's affidavit (a sworn statement to the Court signed in the presence of a Notary Public) was able to be notarized by video conference. I filed the motion by e-mail, and then I conferenced my client and myself into a "virtual waiting room." Like in-person court appearances and emergency filings, there was a waiting period for the Court to process, review, approve and calendar the application. In the background, stereotypical elevator music played, which was reassuring to confirm that we remained connected and holding. The Family Court Clerk stayed in touch throughout the process via text and e-mail. This particular conference was via telephone; however, Court conferences are also now being conducted via video appearance using Skype for Business.

My application, which was submitted in the morning, was conferenced the same afternoon. When the Judge was ready, I received an e-mail and a text from the Court Clerk to dial back into the "virtual waiting room". Within minutes, my client and I virtually appeared before the Judge. The docket was called, appearances read, and the application presented on the record. Instead of seeing lawyers in suits and a judge in a robe, it was a "voices only" court appearance.

Within an hour of the remote telephone appearance, I received a secure e-mail from the Court attaching the newly issued Temporary Order of Protection. Overall, the process was strikingly similar to filing and presenting the application in person, except this time, the organization and implementation of the Court's virtual operations facilitated us to "stay at home" while obtaining the critical emergency relief needed.

Did the Judicial System rise to the occasion? The answer is a resounding, "Yes."

Shauna Tesser-Friedman is a family law attorney at Miller Zeiderman & Wiederkehr LLP. Ms. Tesser-Friedman is a member of the New York County Lawyer's Association (NYCLA), where she served as the Vice Chair to the Alternative Dispute Resolution Committee. She has lectured in a program entitled "What You Need to Know About Alternative Dispute Resolution" and co-authored "The Importance of Educating Tomorrow's Lawyers in ADR" which was published in the New York County Lawyer, Vol. 8, Issue 22, June 2014. Ms. Tesser-Friedman is also a member of the New York State Bar Association. Since 2017, she has been named a "Top 40 Under 40" Lawyer by the National Advocates and a Super Lawyer "Rising Star."

By Cory Morris, Esq.

Depositions are but one of many discovery tools available in state and federal court yet young lawyers are often intimidated by the fast pace of a deposition and the fear of forgetting to ask that one last question or lodge every objection. The valuable takeaways I suggest are to prepare, have a goal/objectives, to follow the rules, be civil, do not riddle the record with useless objections (or, worse, speaking objections) and do not waste time by doing needless depositions.

Know the Rules

Do not agree to something, like the "usual stips," if you do not know to what you are agreeing. Be mindful of the level of intrusion a deponent experiences through these questions. Leave your ego at the door, be humble and remind yourself that you may have bouts of feeling or looking inexperienced. It bear repeating that you must read the applicable rules and prepare. Know your case and speak to your client in advance of the deposition. Although it seems basic enough, advise your client to tell the truth and you may need to explain the process of, among other things, being asked questions under oath, hearing objections, taking breaks and referencing documents to the deponent.

Most Young Lawyers, statistically, are already familiar with newer technologies but it bears repeating that lawyers must remain technically competent. Comment 8 to New York Rules of Professional Conduct ("RPC") 1.1 states: "a lawyer should ... (ii) keep abreast of the benefits and risks associated with technology the lawyer uses to provide services to clients or to store or transmit confidential information."

Deposition Basics

Both sides should have goals and some purpose in taking a deposition. If you are defending the deposition, know your case defenses and be sure to prepare your client thoroughly advising the deponent that any documents you review may become the subject of questioning if not the subject of a document request on the record.

For conducting depositions, it is useful to have a central goal or points you wish to make. If you do not have any goals or central points, do not take the deposition. Have an outline but listen to the answers to your questions. Learn and know the rules (federal or state), review court orders, read the, updated, local rules and know the individual case stipulations and protocols. Before noticing a deposition, be sure that this is the proper discovery device that you wish to use and that you cannot, perhaps, use requests for admission, subpoenas or document requests to, among other things, authenticate or receive documents. If you are noticing a deposition, ask yourself why this is necessary, what do you stand to lose by asking these questions and what is it that you wish to obtain that you cannot obtain on trial.

When (i.e. after paper discovery?) and where (your office, the courthouse, the witness's office) will you conduct the deposition is vital. Will you overload the witness with coffee (caffeine will increase tension) or comfort foods (making the witness more amenable, psychologically, to your questioning) prior to the deposition? Will you be better suited to using a courthouse because you and your adversary have spoken, met and conferred and are unable to resolve a legal issue that will necessitate a ruling?

Who will be present and how will it be recorded? Zoom, for example, will allow a great deal of witnesses to be present, allow your deponent to be in the relaxed environment of his or her home and may be video recorded under certain circumstances.

Zoom Depositions

Young Lawyers are typically more technology savvy but you should still read the Zoom tutorial at https://support.zoom.us/hc/en-us/articles/206618765-Zoom-Video-Tutorials.

Many have discovered a myriad of tips and tricks, ¹ but be mindful that others are still learning the basics. Hardware concerns, lighting, grooming, together with a strong and stable internet connection is the start but let us review some of what works and what does not. Having a hardwired connection, audio headsets, speaking slowly and avoiding the Zoom-bombing, ² attorneys must generate random meeting identifications, utilize waiting room features, enable or disable certain features and sometimes designate hosts depending on the deposition. While this may seem rote, it bears repeating that this may be the first time your adversary has used a web-camera or had their client use a web-camera. Some of my colleagues confessed to me their continued use of a "flip-phone." Be prepared but be patient and collegial in explaining, providing, sometimes teaching, your adversary how to engage in the video deposition.

Notice of Deposition

Location and jurisdiction matters. Under the New York Civil Practice Law and Rules ("CPLR"), Section 3107, "The notice shall be in writing, stating the time and place for taking the deposition, the name and address of each person to be examined, if known, and, if any name is not known, a general description sufficient to identify him or the particular class or group to which he belongs." The Federal Rules of Civil Procedure ("FRCP"), Rule 30, requires "reasonable written notice to every other party, stat[ing] the time and place of the deposition and, if known, the deponent's name and address."

Make sure the court reporter, whoever is administering the oath, should ensure to obtain photo identification consistent with the jurisdiction of the state or location. When possible, parties should stipulate as to the admissibility. Do this in advance of the deposition to limit the time on the record fussing about stipulations. If possible, not only for yourself but for the court reporter, obtain a list of common terms, phrases and stipulations so that the court reporter is not asking the witness to spell or repeat awkward names or common abbreviations known to all sides.

Both the CPLR and FRCP allow for video recording, a popular feature that can easily be utilized when one does a Zoom video deposition. Do not assume your adversary knows this and, absent a stipulation, one should comply with the jurisdictional requirements of notice. FRCP 30(b)(3)(B) allows, "[w]ith prior notice to the deponent and other parties, any party may designate another method for recording the testimony in addition to that specified in the original notice." In New York, 22 CRR-NY § 202.15 provides that "Depositions authorized under the [CPLR] law may be taken, as permitted by section 3113(b) of the Civil Practice Law and Rules, by means of simultaneous audio and visual electronic recording, provided such recording is made in conformity with this section."

Young lawyers should be sure to notice that the deposition will be taken via electronic means, Zoom, and the requirements upon the deponent together with whether your remote deposition will be a video-recorded deposition.

Will the deponent be able to secure a computer and means to participate? Do not wait until the day of the deposition for technology problems. Young lawyers must prepare and arrange to have the deponent arrive at a location that will make all video and audio arrangements if he or she cannot do so independently.

Environmental Issues

Low internet bandwidth is a bummer. One should ensure a stable internet connection, preferably hardwired, that is a dedicated internet connection not otherwise used by several devices. For example, if one is using Ring doorbells, Amazon Firesticks, streaming Netflix and using VOIP lines all while your children are conducting their online classes, you will likely have poor internet bandwidth. Note your surroundings. Even without children or barking dogs, you do not want to hear a toilet flushing in the background. ³

While many are professing that depositions via Zoom are the new normal, ⁴ you may wish to check your internet speeds on sites such as SpeedTest.net. You want to test run your ability to obtain a full picture (hands on the table shoulders and head in the image) video of the deponent and whether you have a solid internet connection with the regular programs running. Ask yourself who may jump onto the scene or your surrounding property - the sudden emergence of a convoy of landscapers may turn otherwise quiet, calm, serene surroundings into turbulent tree-trimming turmoil.

Conducting the Deposition

Depositions should start promptly and there will likely be the regular sort of coffee and restroom breaks. Picture identification should be obtained (typically through the court reporter) and there should be a confirmation and oath taken of the deponent. Together with properly identifying and having counsel note his or her appearance on the record, the court reporter or host should make note of who is in the room and whether the Zoom deposition was password protected. As a Young lawyer, you should be prepared to remind the court reporter to do this if he or she does not.

Like most depositions, there will be a regular discourse of question and answer to which the deponent should be "pinned" if he or she is recorded. You want to pin the deponent to focus and make sure he or she is not engaged in any foul play. Experienced court reporters will, of course, only be able to take down the one party speaking so it is especially important for preparation purposes that the deponent understand that the he or she must allow the question to finish and expect an objection before answering.

Zoom may be utilized from everything from schooling to HIPPA compliant sessions. We must get used to the novelty and convenience of technology. Defense counsel may wish to identify themselves if there are multiple parties objecting. It is also useful, together with deponents, if multiple defense counsel may designate one location or one person defending the objection. While foreign to even of some of the most fierce and hardened litigators, the novelty of issues can be resolved by stipulation or application to the judge should the parties be unable to agree.

Advanced Settings

The video-recorded deposition will likely become the new normal. Although this may be your first, the Young Lawyer will likely be expected to be familiar with the use of remote communication programs.

You may need to explain to your adversary that Zoom depositions allow what would be otherwise non-recorded depositions to obtain the full audio and video of a deponent. Your adversary will usually not be in the same room as the deponent albeit you should not object to the adversary's desire to be in the same room so long as everyone plays be the rules. During the breaks, the time should be noted and the video and audio settings muted.

Screen-sharing allows you to access open documents and programs on your computer. In the case of a document, perhaps your premarked exhibit or a google map, the person on the other end can see what you are showing her. In the case of audio, you may wish to play that 911 phone call or the dashboard camera showing moments before the accident. You can freeze frame and get your deponent to give you a play-by-play of the video that happened all while creating video of the deposition.

More advanced settings will allow for integration of multiple applications and perhaps manipulation of second screens, iPads or tablets for deponents to manipulate, in real-time, exhibits and create new exhibits. Although new, court reporters are quickly adapting and courts will no doubt accept the video depositions, as they have previously, in motion practice and, eventually, trial. As a Young Lawyer, you should be prepared to create a record based on the notice you served the deponent should there be an objection.

Young Lawyers: The future of Video Depositions

The Young Lawyer, often freshly educated with the latest rules of procedure and most recent technology, will no doubt lead the charge in taking and defending video depositions. The RPC requires competence and security to which the Young Lawyer may be actively assisting, even remotely, more senior staff attorneys. By becoming familiar with the procedures, creation of legal notices, technology stipulations and identifying common problems, the Young lawyer may become indispensable if not essential at a time where constrained firms may be making staff cuts.

Named a Superlawyer, Cory Morris is admitted to practice in New York State, Florida and several Federal Courts. He holds an advanced degree in psychology, is an adjunct professor and is a licensed addiction counselor trainee focusing on accident, injury, criminal, addiction and accountability matters.

^{1. Melanie Pinola, 7 Things You Need for Better Video Calls, NY Times (April 23, 2020), https://nyti.ms/2Y09CAu.}

^{2. Rae Hodge, Zoom security settings to change now to prevent Zoombombing, Cnet (April 21, 2020), https://cnet.co/3eSVNd0.}

^{3. Ariane De Vogue, Supreme embarrassment: The flush heard around the country, CNN Politics (May 6, 2020), https://cnn.it/2WHLh1o.}

^{4. Planet Depos, LLC, Top Tips for a Zoom Remote Deposition, JD Supra (Mar. 25, 2020), https://bit.ly/3eXkiWO.}

By Gizem Halis Kasap, Esq.

From the American Arbitration Association to the International Chamber of Commerce, a group of leading foreign arbitral bodies have recently released a joint declaration on the COVID-19 pandemic. ¹ The statement emphasizes the importance of cooperation among the various institutions to ensure that all are making the best use of digital technology for remote working. The COVID-19 pandemic has thus brought the use of technology in legal practice to the forefront.

The arbitration community has proven more enthusiastic in integrating new technologies into arbitration practice than lawyers working in general litigation. Nevertheless, the legal profession overall has a strong commitment to long-established practices and methodologies, including attending proceedings personally and presenting cases in paper format. The outbreak of COVID-19 has accelerated the arbitration community's adoption of novel technology, such as increased use of electronic document management systems, e-filing, online signatures, and videoconferencing. We see what might have been years of technological transition for some taking place in a matter of days. As arbitration incorporates technology into its process, we need to be alert to possible risks and emerging problems.

Arbitration and Artificial Intelligence (AI)

AI has been widely recognized as an emerging innovation in arbitration that needs to be watched. ² Unlike the novel technologies mentioned above, which are mostly tools to streamline the arbitration process and increase the efficiency of the arbitral workflow, AI technologies are used to enhance or support the complex cognitive work of arbitrators or lawyers. For example, AI has a profound effect on legal research. Legal research firms such as LexisNexis and Westlaw are now integrating machine learning and natural language processing that can analyze search terms and then suggest results based on the user's query and those of users who have made similar queries in the past. There are other prominent AI technologies in the legal market is such as ROSS Intelligence ³ and Lex Machina.⁴

Arbitration has not been immune to this trend. ArbiLex, a legal tech startup, leverages AI technologies to assist clients, counseling them in making strategic decisions--say, tribunal selection--by evaluating their approach and testing their positions. ⁵ It thus offers risk management by providing feedback on whether the parties should arbitrate or settle. Like ArbiLex, these data-driven AI technologies can complement claim holders' strategies or opinions in resolving arbitration cases.

AI algorithms can also accurately predict the outcome of cases. For example, computer scientists at the University of London have developed an algorithm that can predict with 79% accuracy the outcome of cases involving torture, the right to a fair trial and the right to privacy that come before the European Court of Human Rights. ⁶ Similarly, in a 2017 study, researchers developed an algorithm that correctly predicted 70.2% of the U.S. Supreme Court's 28,000 decisions and 71.9% of the justices' 240,000 votes between 1816 and 2015. ⁷

The pace of technological progress promises that AI arbitrators will be developed--likely sooner than later. As technology has advanced, the main question becomes whether (or, indeed, when) AI technologies will be able to decide or predict the outcome of an arbitral proceeding insomuch as they can replace the human arbitrators. Naturally, the possibility of an AI arbitrator substituting for a human one presents a multitude of concerns. The main questions are whether an AI arbitrator can validly rule on a dispute under the existing legal framework and whether an award rendered by an AI arbitrator would face vacatur or non-confirmation.

Challenges to Tackle

AI Arbitrator: The Federal Arbitration Act ("FAA") does not explicitly stipulate--nor does it imply--that arbitrators must be human beings, but it does address arbitrators using pronouns such as "he" and "they." ⁸ Nonetheless, the FAA was drafted well before the digital era, and it was scarcely possible for the drafters even to contemplate an AI machine being nominated as an arbitrator. Thus, the semantic inquiry does not reveal much or provide us with a reliable answer.

When AI arbitrators arrive, this will arguably be one of the issues that will be decided. The decision will likely be made in the courts--rather than in legislatures--given that common law has long filled the gaps in the FAA. ⁹ It is important to note that there is no outright provision in the FAA that prohibits or restricts the use of an AI arbitrator in place of a human one. Considering the Supreme Court's strong policy in favor of arbitration, appointing an AI arbitrator per se will not likely be an issue.

Bias: The adage that justice depends on what the judge--or, in this case, the arbitrator--ate for breakfast does not hold true for AI arbitrators. AI algorithms are neutral decision-makers since the algorithm applies the same rules for every decision it makes. ¹⁰ With that said, when an AI arbitrator uses biased data in making a decision, it naturally reinforces the pre-existing biases in the data that is used to train the algorithm.

The FAA s.10(a)(2) provides that a court may vacate an award if it finds evident partiality on the part of an arbitrator. ¹¹ That said, it is difficult to challenge an arbitral award based on evidence partially because of the Supreme Court's judicial policy in favor of arbitration. Moreover, courts are split on what constitutes "evident partiality" after the Supreme Court's ruling in Commonwealth Coatings Corp. v. Continental Casualty Co., where the Court was unable to articulate a standard. Justice Black's opinion in Commonwealth stated that arbitral tribunals "must avoid even the appearance of bias." ¹² The real issue in the case of AI arbitrators is, arguably, quite the opposite--no such "appearance" is possible in the first place.

As stated above, a procedurally neutral AI algorithm can nonetheless yield a biased result. ¹³ However, a human may not be able to identify the problem because AI algorithms are something of a "black box." In other words, when input is being fed into the algorithm, the desired output based on machine-learning techniques can be produced--but without an explanation of why the output is as it is. The problem of the lack of transparency in the decision-making of AI arbitrators will make it more challenging to discover bias or discrimination, thereby increasing the difficulty of proving bias on the part of the arbitrator. ¹⁴

Public Policy: An AI-rendered arbitral award could face certain objections--or, at least, queries--based on public policy violations. Although the FAA does not expressly stipulate violation of public policy as a ground for vacatur, the public policy exception as developed in common law allows vacatur or non-enforcement of an award if it runs contrary to an explicit, well-defined, and dominant public policy. ¹⁵ Thus, we must ask whether an AI-rendered award could run against the values entrenched in U.S. law and society.

The application of public policy grounds will depend on the reception of U.S. courts to technology. Once AI becomes a pillar of the legal profession, the U.S. courts will likely welcome decisions rendered by AI arbitrators. The argument that public policy is a concept that develops and evolves in response to society's needs over time also supports this conclusion. AI-rendered awards will be deemed more legitimate if there is an agreement between the parties appointing an AI arbitrator in the light of Volt Info. Scis. v. Bd. of Trs., where the Supreme Court held "arbitration is strictly a matter of contract" insofar as "parties should be at liberty to choose the terms under which they will arbitrate." ¹⁶

Conclusion

The contractual and rather informal nature of arbitration means the technology can be integrated into arbitration processes with ease. As AI makes its way to arbitration and as viable AI arbitrators appear to be just over the horizon, we must discuss whether the limited grounds for vacatur under the FAA as enacted in 1925 is broad enough the cover the issues that will arise with the integration of this technology, or whether we need to articulate new standards of review considering the intrinsic features and dangers of AI technology.

Gizem Halis Kasap is an attorney licensed to practice in Istanbul and New York. She received her LLM degree focusing on arbitration from Penn State Law and currently conducts her doctoral studies on the same subject at Wake Forest Law. She works as an Of Counsel at Akkayan & Yildirim Attorney Partnership, based in Istanbul, Turkey, where she focuses her practice on international arbitration law, US arbitration law, international commercial law, and US commercial law. The views expressed in this article are her own, and nothing herein is intended as legal advice.

^{1. Arbitral institutions COVID-19 joint statement, ICC, https://iccwbo.org/publication/arbitral-institutions-joint-statement-in-the-wake-of-the-covid-19-outbreak/ (last visited Apr. 22, 2020)}

^{2. Id.}

^{3. ROSS INTELLIGENCE, https://rossintelligence.com (last visited Apr. 22, 2020)}

^{4. LEX MACHINA, https://lexmachina.com (last visited Apr. 22, 2020)}

^{5. ARBILEX, https://www.arbilex.co/welcome (last visited Apr. 22, 2020)}

^{6. Nikoloas Aletras, Predicting judicial decisions of the European Court of Human Rights: A Natural Language Processing perspective, PEERJ COMPUTER SCI. (2016), available at https://peerj.com/articles/cs-93/}

^{7. Daniel Katz et al., A general approach for predicting the behavior of the Supreme Court of the United States, 14 PLOS ONE (2017), available at https://doi.org/10.1371/journal.pone.0174698}

^{8. 9 U.S.C.A. § 5}

^{9. E.g., First Options of Chicago, Inc. v. Kaplan 514 U.S. 938 (1995) (recognizing kompetenz-kompetenz in US arbitration law)}

^{10. Ric Simmons, Big Data, Machine Judges, and the Legitimacy of the Criminal Justice System, 52 U.C. DAVIS L. REV. 1067, 1081 (2018)}

^{11. 9 U.S.C.A. § 10(a)(2)}

^{12. Commonwealth Coatings Corp. v. Cont'l Cas. Co., 393 U.S. 145, 150 (1968)}

^{13. Anupam Chander, The Racist Algorithm?, 115 Mich. L. Rev. 1023, 1036 (2017).}

^{14. See FRANK PASQUALE, THE BLACK BOX SOCIETY: THE SECRET ALGORITHMS THAT CONTROL MONEY AND INFORMATION 38 (2015)}

^{15. E.g., E. Associated Coal Corp. v. United Mine Workers of Am., Dist. 17, 531 U.S. 57, 62 (2000); United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 30 (1987); W.R. Grace & Co. v. Local Union 759, Int'l Union of United Rubber, 461 U.S. 757, 766 (1983)}

^{16. Volt Info. Scis. v. Bd. of Trs., 489 U.S. 468, 472 (1989)}

By Kelsey R. Ruszkowski, Esq. and Samuel J. Blanton, Esq.

ABSTRACT

The use of remote communication technology is growing in the workplace, exponentially so following the outbreak of Covid-19. The legal field is no exception. Various remote technologies provide lawyers an efficient means for reaching distant clients. While phone calls and emails are commonplace, other forms of remote technologies such as video conferencing have traditionally been underutilized. However, remote communication may present new challenges and risks that are not present when communicating in person. In a field where a client's trust and staff cohesion are essential, there is a lack of research on what effect communicating remotely has on the attorney's ability to develop rapport with their clients and on the attorney's ability to communicate effectively with their staff. While current research on the patient-therapist relationship may inform study on the attorney-client relationship, there has been no research in the legal setting beyond minor study in the criminal context.

To address this deficit, we designed a study to examine the effect that communicating remotely had on rapport development in the attorney-client relationships as well as the relationship between a remote attorney and their staff members. To do this we collaborated with an attorney who works both remotely and in-office. We surveyed both his clients and staff members in order to evaluate their relationship with the attorney and to review their opinions on remote legal services. No ill effects associated with communicating remotely were observed and some participants praised the added efficiency of remote communication. Along with evaluating remote attorney relationships this article also provides software suggestions based on ease of use and their promotion of client confidentiality. Overall, this initial study provides support for future research in the field and encouragement for the continued use of remote communication technologies in legal offices following the end of the pandemic.

Iɴᴛʀᴏᴅᴜᴄᴛɪᴏɴ

Even before the spread of Covid-19, technology use has quickly become an integral part of our everyday lives and has shaped the way we communicate with one another. Communicating remotely is a new societal norm; whether through social media, video conferencing, phone calls, or text messages. This form of communication has extended beyond the social realm and into the professional world. Even though remote technology is widely used, business executives generally prefer to meet in-person rather than through some form of technology. ¹ These executives prefer in-person communication because they believe that it helps them build stronger relationships and enable them to read the body language of the person they are communicating with. ² In the legal realm, nearly three fourths of attorneys report using some form of telecommuting in their legal practice, meaning that they use technology to communicate while out of office. ³ However, these statistics do not provide information concerning the extent to which technology is used by attorneys when communicating with their clients. While remote communication is rapidly increasing in the legal field and society in general, in part because the pandemic has left little or no choice, there has been an absence of research on how remote technologies influence the practice of law. Specifically, the effects of remote technology on relationships between attorneys, their clients, and other staff members in a setting outside of criminal law.

Pᴀsᴛ Sᴛᴜᴅɪᴇꜱ

Due to the limited nature of our study, past research concerning relationship formation, whether between two peers, a therapist and their patient, or an attorney and their client, can inform research on attorney-client relationships outside the courtroom.

I. Tᴇᴄʜɴᴏʟᴏɢʏ ɪɴ Iɴᴛᴇʀᴘᴇʀsᴏɴᴀʟ Rᴇʟᴀᴛɪᴏɴsʜɪᴘꜱ

Research has been conducted concerning how different modes of communication influence interpersonal relationships. ⁴ In one study researchers reviewed the interpersonal relationships formed between unacquainted college students when communicating either through text message, audio, video, or face to face. Students then met a second time using Skype. ⁵ After having a conversation, participants rated how much they liked the other person, the level of connection they felt, how much they enjoyed the interaction, and how responsive they felt the other person was. ⁶ The conversations involved asking predetermined questions and had a time limit. ⁷

For the first interaction, communicating via text message resulted in a significantly weaker relationship than when using other modalities; the face-to-face condition resulted in the most positive interaction. ⁸ Interestingly, participants in the audio condition had a slightly more positive experience than those participants in the video condition. ⁹ This suggests that, at least in regards to brief interactions, communicating using only audio can result in near identical or improved interpersonal relationship strengths as when using video communication. ¹⁰ When participants met for a second time using Skype, the strengths of the relationships in all conditions increased to similar levels with a range of .15 out of seven. ¹¹ This suggests that the modality used in the initial interaction does not influence future communication. ¹² The results further suggest that overtime, the strengths of interpersonal relationships formed over video or audio communication can reach the same level as those relationships formed face-to-face.

When video conferencing is used to communicate, some of the nonverbal cues involved in communication are lost. ¹³ Consequently, the level of trust developed between two speakers may be distorted. ¹⁴ For example, video conferencing speakers are less capable of detecting sincerity but are also less capable of detecting deception. ¹⁵ Further, in negotiation tasks individuals trust each other less when more visual cues are available. ¹⁶ This finding actually makes remote communication more appropriate for negotiation-type tasks as it limits the social cues available to the parties. When parties use remote communication while negotiating many of the negative cues they expect in a traditional negotiation setting are simply no longer available to confirm their preconceived connotations. ¹⁷

II. Rᴇᴍᴏᴛᴇ Tʜᴇʀᴀᴘʏ

A relationship similar to that experienced by an attorney and their client is that of the therapist and their client. Both involve repeated exposure and require strong interpersonal relationships. While there has been little study of the attorney-client relationship, there has been some research into the therapist-client relationship. Therefore, research into the therapist-client relationship may inform rapport development in the attorney-client relationship.

When comparing in-person to internet therapy there was no significant difference in treatment effectiveness. ¹⁸ In regards to the interpersonal relationship between therapists and their clients, there was no significant difference when clients rated their working alliance with their therapists between the in-person and videoconferencing conditions. ¹⁹ The same was true when the therapists rated their working alliance with their clients. ²⁰ Working alliance included such factors as: understanding, common goals, trust, and confidence in a therapist's ability to help. ²¹ This suggests that there is no significant difference in a counseling relationship when remote communication is used as compared to in-person communication. These findings may be transferable to the relationship formed between an attorney and their client.

III. Rᴇᴍᴏᴛᴇ Cᴏᴍᴍᴜɴɪᴄᴀᴛɪᴏɴ ɪɴ ᴛʜᴇ Cᴏᴜʀᴛʀᴏᴏᴍ

Even in ordinary circumstances it may be difficult for a client to retain an attorney, whether due to geographic limitations, lack of funding, etc. Although an attorney may be available, they might not have the skillset appropriate for the particular case. Using remote technologies provides a solution to this problem. When utilized in the courtroom, video conferencing tools can allow attorneys, clients, and judges to appear from remote locations. Based on a survey from the National Center for State Courts conducted in 2010, approximately 60% of state courts used video conferencing in criminal proceedings. ²² In some criminal trials defendants have even appeared remotely in court. ²³ However, this arrangement can be less than ideal.

As expected, there are some limitations experienced when lawyers communicate with their clients remotely in a courtroom. For example, when a defendant is appearing remotely their attorney no longer has the ability to pass them notes or to conspicuously signal them to adjust their behavior while in court. ²⁴ This in effect limits an attorney's ability to advice their client and limits a defendant's ability to consult their attorney while in the courtroom. ²⁵ Further, appearing in court remotely influences how a defendant behaves, although the change in behavior is difficult to predict. ²⁶ Some may appear more relaxed while others appear more nervous due to the thought of an "invisible audience" watching them. ²⁷

There is no significant difference in criminal defendant ratings of their relationship with their attorney while communicating via video conference as compared to in person. ²⁸ Additionally, modality has no significant effect on a defendant's perceived level of participation in their case nor on their level of trust in their attorney. ²⁹ In a recent study only 10% of defendants reported that they would be reluctant to communicate with their attorney through video conferencing in the future. ³⁰

Of primary concern are the privacy interests of the defendant as well as the potential negative biases which may be introduced when the defendant is not physically present in the courtroom. ³¹ Additionally, if an attorney and client try to communicate remotely there is an increased risk of others overhearing their conversation. This may inadvertently waive the attorney-client privilege and threaten the defendant's right against self-incrimination. Therefore, both attorneys and their clients must be more aware of their surroundings when communicating remotely.

Pʀᴇsᴇɴᴛ Sᴛᴜᴅʏ

I. Rᴇᴍᴏᴛᴇ Aᴛᴛᴏʀɴᴇʏ-Cʟɪᴇɴᴛ Rᴇʟᴀᴛɪᴏɴsʜɪᴘs Oᴜᴛsɪᴅᴇ ᴛʜᴇ Cᴏᴜʀᴛʀᴏᴏᴍ

Although remote communication such as emails, phone calls, and video conferencing are commonly used in the legal profession, exactly how this influences the working relationship between an attorney and their clients is yet to be studied outside the courtroom. ³²

A. Potential Problems

Without previously being acquainted with clients, communicating remotely may limit an attorney's ability to develop rapport with their client due to the limited number of visual cues available to each party as compared to in-person communication. Fortunately, this difference may not be significant if the people communicating are already familiar with each other. ³³ However, there have not been studies which address this concern when it comes to attorney-client interaction in a transactional setting. Further, using remote technology runs the additional risk of hindering communication due to technological difficulties. ³⁴ Like in the context of the courtroom, a remote attorney-client relationship outside the courtroom bares the same problem of risking an unintentional waiver of the attorney-client privilege. ³⁵ Therefore, in order to study the effect that remote representation has on rapport we must be cognizant of confidentiality and privilege concerns.

In real world situations, clients may live in remote areas and may not have access to an attorney's office with a remote technology setup as used in this study. This study's use of an office-to-office setup aimed to control for clients who may not be comfortable using technology and to ensure confidentiality. Confidentiality may be the biggest concern after client comfort when it comes to remote representation. When using a video conferencing platform, it is important to inform the client about the nature of confidentiality so that it is understood that there should not be other people off screen who can hear or see the communication.

A lawyer's ethical responsibilities requires the lawyer to take reasonable steps to ensure confidential information is protected. ³⁶ When it comes to selecting what technology to use, a firm should be aware of how their system stores communications. The platform used here, Omnijoin, contains communications to the individual session and, unless saved by either party, all communications are deleted when the meeting concludes. In contrast, Skype keeps an ongoing chat history that remains until deleted. Regardless of the platform used, as long as the attorney is aware of how that platform stores communications and is able to control what happens to confidential data, there should be little fear regarding leftover confidential data. If a communication platform uses a password, it is important that the firm use a strong password to ensure left-over data from a communication is not accessible.

B. Method

In order to examine how communicating remotely influences rapport with a client we developed a survey which asked clients to: rate the degree of comfort they felt when interacting with their attorney, their level of satisfaction with their attorney's commitment to their case, and their likelihood of retaining him in the future. Additionally, clients were asked if they experienced any technical difficulties while working with their attorney. The survey was administered electronically to participants through email. Clients were contacted by their attorney through email, phone, video conference, and in person.

To minimize the occurrence of technical difficulties experienced by clients while video conferencing the law office designated a private room for video conferencing and set up the necessary technology for clients to use. This method not only allowed for more consistent experiences for the clients employing the video conferencing modality but also minimized the chance of a confidentiality breach.

C. Technology Used

Besides normal phone and email, a basic video conferencing setup was used for this study. The attorney's remote office had a webcam set up with a built-in microphone with a standard monitor display. The main office also had a basic webcam with a built-in microphone as well as a monitor display. Because the video conferencing environment was controlled in this way (that is it was insulated from client manipulation), the choice of video conferencing software was influenced by the need for ease of use from the broadcaster's perspective. The direct set-up eliminated concerns about a client's potential technological limitations. ³⁷ This office-to-office set-up also functions to minimize the risks of a compromise to confidentiality. The software used is called "Omnijoin" by Brother International Corp.

Omnijoin is a lite, application-based video conferencing solution that is easy to use for people that may have no video conferencing experience due to its largely automated installation and device configuration. It is also a flexible application that allows for PCs, Macs, and phones to all connect to the same call. Omnijoin works well for remote client interactions because it has, amongst other features, an integrated document editor. The attorney was able to markup a document (be it contract or will) to highlight and explain various parts to a client. The annotated document could be saved as a record of what was discussed during the meeting as well. Further, Omnijoin allows for the scheduling of meetings, which may be beneficial if an attorney were to use the system with various clients regularly. Additionally, Omnijoin only requires the host/attorney to have an account; guests can connect if given an invitation link, which, combined with its ease of installation, makes for a good program for connecting with clients who may be outside the reach of an office setup.

The video quality was not an issue and there was no reported lag or other technical problems with the stream. The results indicate that high-definition video conferencing is not needed for positive results. It does follow, however, that a high-definition video conferencing setup in an office may be more impressive to a client and at least clearer in regard to social cues. The cost effectiveness of such a setup would of course depend on the frequency of use and if new clients were met for the first time remotely.

D. Results

Overall, regardless of the form of communication used all clients were "extremely satisfied" with the legal work performed on their behalf. The number of times the client had worked with the attorney in the past did not influence their level of satisfaction with their attorney's work nor their level of comfort when communicating with their attorney. There was one client who was only "somewhat comfortable" when communicating via email, rather than their usual in person meetings. However, all other clients were "very comfortable" with every communication modality used. All clients expressed that they were either "very likely" to or would "definitely" recommend this attorney to their friends and would use this attorney again if the opportunity presented itself. This suggests that the clients had a high level of trust in their attorney's ability and commitment. No clients experienced any technical difficulties while communicating and one client praised the efficiency that came with communicating remotely.

II. Rᴇᴍᴏᴛᴇ Cᴏ-Wᴏʀᴋᴇʀꜱ

Although an attorney may work remotely, they will still have to communicate with their coworkers. When it comes to remote workers the key characteristics necessary for a successful relationship between a remote worker and those in the office are trust and flexibility. ³⁸ Concerns which are often expressed in regards to remote workers include that the worker will not work as efficiently or will complete less work than they would have if they were in the office. In fact, the opposite has been shown to be true. ³⁹ Additionally, remote workers who spend 60-80 percent of their time outside the office actually report feeling more engaged with and valued by their companies than traditional employees working on site. ⁴⁰

A. Problems commonly experienced by remote workers

Many remote workers fail to effectively separate their work and home life. While both types of workers experience distractions, whether from coworkers or family members, remote workers are more likely to work longer hours. ^{41 However, they may also lack the relief which comes from the physical separation of home and work life. 42 Trust is often built through frequent interaction and familiarity. 43 However, too much contact from an employer may be construed as having excessive oversight and being overbearing. A common situation where this occurs is when an employer uses electronic monitoring software. 44 While there are many benefits which come with a remote working environment, it may also have the potential to agitate the cohesiveness between an attorney and their colleagues.}

B. Method

A similar survey to the one administered to clients was also given to three members of the office staff. This survey asked staff members to rate their level of trust they had that the attorney would complete their work both in and outside the office, how often they communicated with the remote attorney and by what means, how communicating remotely influenced their collaboration, as well as any technical difficulties they experienced. The attorney who we worked with communicated with the same staff members regardless of whether the attorney was physically present in the office or communicating remotely. Previously, the attorney and his staff primarily communicated in person, through phone, and through email. For this study, video conferencing was added to the modes of communication used.

C. Results

All staff members preferred using phone calls when communicating with the attorney when he was outside the office. Two of the staff members reported that communicating remotely did not influence their ability to collaborate with the attorney effectively while one member reported that communicating remotely actually improved their ability to work effectively. Additionally, the level of trust staff members had that the attorney would timely complete their work was the same regardless of whether the attorney was working at the office or remotely. No staff members experienced any difficulties while communicating remotely and did not have any concern related to using remote technology in a legal office.

Eᴛʜɪᴄᴀʟ Cᴏɴꜱɪᴅᴇʀᴀᴛɪᴏɴꜱ

The same ethical considerations apply to remote offices as those which apply to physical offices. ^{45 Attorneys are required to use reasonable care when protecting the confidentiality of their clients, regardless of their methods of communication. 46 With this in mind, in order to protect client files that are stored online encryption software would need to be utilized. Additionally, steps would have to be taken to ensure that various forms of remote communication are used securely, keeping in mind the caveats of confidentiality. 47 Attorneys must be conscious of the attorney-client privilege and should take precautions to ensure that exchanges with their client are secure.}

Bᴇɴᴇfɪᴛs

Regardless of how often attorneys use remote technologies, many benefits can be derived from doing so. Small firms or solo practitioners who utilize remote technologies can work from home offices and save themselves the overhead cost of renting office space. Also, a greater pool of clients is available to an attorney, particularly those in secluded areas who would have found it difficult to reach a qualified attorney. Using remote technologies to communicate also reduces travel time and costs associated with commuting. Additionally, remote communication can help non-native English speakers or foreign citizens navigate the American legal system by giving them access to attorneys who speak their native language or who are familiar with the client's cultural background. Attorneys who are more experienced in handling cases involving foreign participants can be reached more easily. For example, in deportation cases immigrants have a right to an attorney. ^{48 However, the government is not required to fund this representation.49 As a result, half of those immigrants facing deportation do so without the aid of an attorney. 50 Using remote technologies can give these people easier access to pro bono attorneys willing to help them who otherwise would have been prevented by geographic constraints.}

Cᴏɴᴄʟᴜꜱɪᴏɴ

Research suggests that attorneys can communicate effectively with their clients and other staff members while working remotely, demonstrating that remote technologies have a place in the transactional, criminal, and civil realms of legal practice. The present study suggests that even while communicating remotely, attorneys can develop rapport and trust with their clients and staff. With remote technology, clients and attorneys gain the efficiency and safety of not having to meet at a physical office and clients may gain the additional benefit of having access to an attorney who can better meet their needs than one located nearby. Further, using remote communication gives attorneys access to clients in rural areas and can also reduce overhead costs of running an office as well as travel expenses. In the current technology era, it is easier than ever for firms of all sizes to take advantage of remote communication technologies. With the precautions merited by Covid-19 legal offices have been forced to modernize at an unprecedented rate. However, they must realize that for this technology to be utilized in the legal setting, extra precautions have to be taken to ensure that confidential client information remains secure. With this concern in mind, incorporating remote technologies can bring immense benefits to the modern legal office.

Kelsey Ruszkowski is an attorney at Gibson, McAskill & Crosby, LLP in Buffalo, NY. She earned her J.D. at William & Mary Law School and B.A. from Niagara University. She can be contacted at kruszkowski@gmclaw.com.

The authors would like to express their gratitude to the Cyberjustice Laboratory of the Université de Montréal for providing a grant to support this research.

^{1. Jeff Koyen, Business Meetings: The Case for Face-to-Face Forbes Insights (2009), images.forbes.com/forbesinsights/StudyPDFs/Business_Meetings_FaceToFace.pdf.}

^{2. Id.}

^{3. Joshua Poje, Virtual Law Practice, ABA Tᴇᴄʜʀᴇᴘᴏʀᴛ 2014 (2014), http://www.americanbar.org/publications/techreport/2014/virtual-law-practice.html.}

^{4. Susan Sprecher, Initial Interactions Online-Text, Online-Audio, Online-Video, or Face-to-Face: Effects of Modality on Liking, Closeness, and Other Interpersonal Outcomes, 31 Cᴏᴍᴘᴜᴛᴇʀꜱ ɪɴ Hᴜᴍᴀɴ Bᴇʜᴀᴠɪᴏʀ 190-197 (2014).}

^{5. Id. at 194}

^{6. Id. at 193 (Scores ranged from one, meaning "not at all", to seven, meaning "a great deal").}

^{7. Id. at 193.}

^{8. Susan Sprecher, Initial Interactions Online-Text, Online-Audio, Online Video, or Face-to-Face: Effects of Modality on Liking, Closeness, and Other Interpersonal Outcomes, 31 Cᴏᴍᴘᴜᴛᴇʀꜱ ɪɴ Hᴜᴍᴀɴ Bᴇʜᴀᴠɪᴏʀ 190-197 (2014).}

^{9. Id. at 195.}

^{10. Id.}

^{11. Id. at 193.}

^{12. Id. at 196.}

^{13. Eric T Bellone, Private Attorney- Client Communications and the Effect of Videoconferencing in the Courtroom, 8 J. ᴏꜰ Iɴᴛ'ʟ Cᴏᴍᴍᴇʀᴄɪᴀʟ L. & Tᴇᴄʜ. 24, 33 (2013), http://www.jiclt.com/index.php/jiclt/article/viewFile/176/173.}

^{14. Id.}

^{15. Id.}

^{16. Cameron Teoh et. al., Investigating Factors Influencing Trust in Video-Mediated Communication, 312, 318 (2010), http://portal.acm.org/dl.cfm.}

^{17. Id.}

^{18. Daniel R Stubbings et al., Comparing In-Person to Videoconference-Based Cognitive Behavioral Therapy for Mood and Anxiety Disorders: Randomized Controlled Trial, 15 J. ᴏꜰ Mᴇᴅ. Iɴᴛᴇʀɴᴇᴛ Rᴇꜱᴇᴀʀᴄʜ (2013).}

^{19. Id.}

^{20. Id.}

^{21. Id.}

^{22. Brendan R. McDonald et al., Attorney--Client Working Relationship: Videoconferencing Versus In-Person Consultations, 22 Pꜱʏᴄʜᴏʟ. Pᴜʙ. Pᴏʟ'ʏ & L. 200, 201 (2016).}

^{23. Gerald G Ashdown & Michael A Menzel, The Convenience of the Guillotine?: Video Proceedings in Federal Prosecutions, 80 DENV. U. L. REV. 63 (2002) (discussing the use of video conferencing in federal and state prosecutions).}

^{24. Eric T Bellone, Private Attorney- Client Communications and the Effect of Videoconferencing in the Courtroom , 8 J. of Int'l Commercial L. & Tech. 24, 29 (2013).}

^{25. Id.}

^{26. Anne Poulin, Criminal Justice and Videoconferencing Technology: The Remote Defendant, 78 TUL. L. REV. 1089, 1167 n. 155 (2004).}

^{27. Id.}

^{28. McDonald, supra n.22, at 206.}

^{29. Id. at 205-06.}

^{30. Id. at 206.}

^{31. Poulin, supra, n. 26 at 1126.}

^{32. For a short overview of the different forms of remote communication used in the legal field, see Wells H Anderson & Seth G. Rowland, How to Choose the Right Tools for Any Client Communication, 31 GP Sᴏʟᴏ (2014), https://www.americanbar.org/publications/gp_solo/2014/may_june/how_choose_right_tools_any_client_communication.html.}

^{33. Cameron Teoh et. al., Investigating Factors Influencing Trust in Video-Mediated Communication, 312, 314 (2010), http://portal.acm.org/dl.cfm.}

^{34. Difficulties may include such common occurrences as buffering, lag time between speech and lip movement, weak connections, etc. Note, however, that the use of in house HD video conferencing solutions, instead of a basic set-up like the one used here, should resolve these concerns.}

^{35. Paula Schaefer, Technology's Triple Threat to the Attorney-Client Privilege, J. ᴏꜰ ᴛʜᴇ Pʀᴏꜰ. Lᴀw. 171 (2013), http://www.abanet.org/cpr/pubs/symposium.html.}

^{36. Model Rules of Prof'l Conduct R. 1.6(c) (2016); see id. at Comment [18], [19].}

^{37. Potential limitations could have included the client's operating system, strength of internet connection etc.}

^{38. Christine A. Grant, Louise M. Wallace & Peter C. Spurgeon, An Exploration of the Psychological Factors Affecting Remote E-Worker's Job Effectiveness, Well-Being and Work-Life Balance 35 Eᴍᴘʟᴏʏᴇᴇ Rᴇʟᴀᴛɪᴏɴꜱ 527, 535 (2013).}

^{39. Remote Workers Log More Hours and Are Slightly More Engaged, Gᴀʟʟᴜᴘ Nᴇᴡꜱ, (July 12, 2013),
http://www.gallup.com/opinion/gallup/170669/remote-workers-log-hours-slightly-engaged.aspx.
Niraj Chokshi, Out of the Office: More People Are Working Remotely, Survey Finds N.Y. Tɪᴍᴇꜱ (Feb. 15, 2017),
https://www.nytimes.com/2017/02/15/us/remote-workers-work-from-home.html.}

^{40. https://money.cnn.com/2018/03/12/news/economy/international-student-visa-college/index.html}

^{41. Gᴀʟʟᴜᴘ Nᴇᴡꜱ, supra note 39.}

^{42. Id. (revealing how remote workers feel more connected to their company and log more hours).}

^{43. L.Y.-Y. Kwan et al. Mere Exposure Affects Perceived Descriptive Norms: Implications for Personal Preferences and Trust, 129 Oʀɢ. Bᴇʜᴀᴠɪᴏʀ & Hᴜᴍ. Dᴇᴄɪꜱɪᴏɴ Pʀᴏᴄᴇꜱꜱᴇꜱ 48, 53 (2015), http://ac.els-cdn.com/S0749597814001174/1-s2.0-S0749597814001174-main.pdf?_tid=77af2188-98c1-11e7-8b4e-00000aab0f6c&acdnat=1505334416_2442004ad967cc147975a91ae9be52f3 ("Individuals might have greater trust in more well-known employees.").}

^{44. Nick Nykodym & Robert Taylor, Communication: A Vital Tool to Combat Cyber Crime, 2 J. ᴏꜰ Iɴᴛ'ʟ Cᴏᴍ. L. & Tᴇᴄʜ. 185, 186-87 (2007).}

^{45. Seth L Laver & Jessica L Wuebker, Home Is Where the Office Is- Ethical Implications of the Virtual Office, ABA Sᴇᴄᴛɪᴏɴ ᴏꜰ Lɪᴛɪɢᴀᴛɪᴏɴ (Nov. 2, 2014), https://apps.americanbar.org/litigation/committees/professional/articles/spring2014-0314-home-is-where-office-is-implications-virtual-office.html.}

^{46. Id.}

^{47. See generally, Michael D. Fielding, You Need To Know This: Bankruptcy and Attorney-Client Privilege in the Electronic Age, 25 Aᴍ. Bᴀɴᴋʀ. Iɴꜱᴛ. J. 62 (Dec 2006/ Jan 2007) (discussing inadvertent waivers of the attorney-client privilege through email).}

^{48. Lucas Guttentag & Ahilan Arulanantham, Extending the Promise of Gideon: Immigration, Deportation, and the Right to Counsel, 39 Hᴜᴍ. Rᴛꜱ Mᴀɢᴀᴢɪɴᴇ, 2013, http://www.americanbar.org/publications/human_rights_magazine_home/2013_vol_39/vol_30_no_4_gideon/extending_the_promise_of_gideon.html.}

^{49. Id.}

^{50. Id.}

By Brandon Vogel

The next generation of clients may not call their lawyers, but will happily jump on a computer or use their device to communicate.

Sarah Gold of Albany (Gold Law Firm), co-chair of the Law Practice Management Committee, explained that "it's not necessarily a bad thing; it's just different." Lawyers who embrace virtuality are halfway to growing their practice.

Even after the coronavirus pandemic is over, Gold doesn't see things going back to the way we were. She prefers to think forward and "not dwell on what it used to be like because it will drive you crazy."

"You are probably not going to be taking as many in-person consultations as you used to and that's fine as long as you have the technology and the wherewithal to back it up," said Gold. "Things will still need to get done and you need to figure out a way to do this."

Initially planned before the coronavirus pandemic, Gold's program, "Ten Tips to Help Grow Your Practice" focused on what lawyers need to thrive now with an increased emphasis on an attorneys' website and virtual presence.

Client communications

Gold advised that if you don't have a website, "Get on that right now!" If you have one, what does it say? You need to be able to identify on your website what your clients are looking for. Gold's website clearly states that she is open for business during the coronavirus crisis and what key services she provides. She also affirms that she has the remote technology available to serve her clients, including videoconferencing and digital notarization tools.

On the other side, Gold reminded the audience to check how their law firm appears on Google. "What Google says about your business right now may or may not be true," said Gold. "It's really important to go to Google My Business." Are you still open? If so, are your hours the same? Are you by appointment only?"

She explained that a business may be listed as temporarily closed because the building itself is closed. "You don't want to give clients the wrong idea," said Gold. She noted that Google is not allowing reviews currently, but a business owner can still set up ads and track performance.

Some lawyers are texting with clients, still "a new concept as far as businesses are concerned." Gold herself lets clients text her through services that don't allow clients to receive her cell phone number. Through Skype, clients can send her SMS messages that go right to her phone.

"Sometimes, it's much easier for that quick question," said Gold. "As your clients start coming of age, it's kind of an expectation."

Gold has been able to take on new clients during this pandemic. "It is important to know where your clients are and come to them where they are. At the end of the day, they are still expecting to have that consult. You are going to have to rethink what that client consult is and provide those options to your client," said Gold.

Gold foresees that when the economy reopens, "Things are going to open up with a bang." Being in contact with clients now will help.

"You don't have to send a touchy-feely email that says 'We are thinking about you through this difficult time.' Keep your messages simple but clear," said Gold. "Clients are looking for you for reassurance; provide it. Being that voice of reassurance and wisdom can go a long way."

The right technology

As lawyers have moved to remote work, they may have discovered that their current technology could be better. Gold suggested that lawyers come up with a wish list of software and hardware to help you with your practice. "To do the research now takes a lot of time off your plate," said Gold. Webcams, she noted, are very hard to find and retailing much higher than before the coronavirus.

Gold recalled when she started her solo practice, she was looking for a law practice management (LPM) software that was ultimately "a unicorn, something that didn't exist." For better or worse, LPM software pops up like mushrooms in the dark, she said.

"Some of it is a matter of trying to figure out what you need and what you don't need. Make a list of what you'd like (time tracking, client intake, document management)," said Gold. "Don't be afraid to do the demos. When you do the demos, don't get pushed around by the pricing. Play hard and fast with what you are willing to pay."

Understanding what your practice is and what it isn't is important.

She discussed that some programs work well for family law attorneys and trusts and estates attorneys but not everyone. Changing practice management software can be difficult, but not impossible; most programs can be migrated.
Gold also discussed that some lawyers still prefer checks over credit cards for client payments.

"Right now, getting paid is better than not getting paid," said Gold. "Clients want to be able to make that payment."
She recommended that lawyers use a third party to handle credit card transactions to reduce liability issues.

"There is nothing better than getting an email that your client has paid you right after you have sent that invoice," said Gold.

We are launching our new column, Why I Belong, which is a column that features NYSBA YLS members and provides a little background on each member in a Q&A format. If you'd like to be featured in our upcoming issues, please email our editors, Julie T. Houth at jhouth@gmail.com and Mansi Parikh at mansiparikh.1711@gmail.com.

Name: Justin Batten

Firm: Scott+Scott Attorneys at Law

Education (undergrad and Law School): Georgia State, B.A.; New York University, J.D.

Areas of practice: Antitrust and consumer protection class actions.

Proudest career moment: My proudest moment so far was finding significant evidence in an antitrust case that really helped to expand the case.

Family: I have a big family, but unfortunately, they are all back home in Georgia!

Current area of residence: New York, NY

"If I weren't an attorney, I'd be..." either a Spanish teacher or Spanish language translator. That is what I studied in college.

"The best thing about being an attorney is..." recovering money on behalf of injured or defrauded consumers and investors.

Last vacation: Los Angeles, where I visited the beach and toured. It was a lot of fun!

Favorite Web site: Law360 for business and Twitter for personal.

Hobbies: I love outdoor trail running and trying out new recipes to cook up.

Favorite book: Catch-22, because it is hilarious and disturbing at the same time.

Favorite food: Tacos, which are very versatile. You can put anything in a taco and they are appropriate for any meal of the day.

Most fun/memorable NYSBA moment or meeting: The Gala in January 2020 was an experience I will never forget, and featured important speakers in a great setting at the Museum of Natural History.

Do you have a unique skill or special talent nobody knows about? Most people probably do not know that I am pretty good at several different types of poker games, although I have not played in years!

What one skill has helped you be successful as an attorney, and how could others develop that skill to better their practices? My patience has been one of my biggest attributes that has helped me as an attorney. Specifically, the patience to work my way through a lengthy research assignment or brief. The best way to improve upon that skill is to take breaks from an assignment to work on another, if time permits, and then return to the first assignment with a clear head.

Do you have a mentor? I have been fortunate to have several mentors throughout my career who have helped me get to the position I am in now. Their guidance and advice has been invaluable to me. I met many of them through NYSBA programming.

What would you most like to be known for? I would like to be known as an attorney that a court can trust when I make arguments or statements in a pleading or at a hearing.

What makes the New York State Bar Association so special/unique? The in-person events are the most special part. The Antitrust Section in particular holds a number of in-person events throughout the year, which are special because they make for compelling events and great networking opportunities.

COVID-19 Special Questions:

Any new hobby or skill that you developed during the lockdown? It is not exactly new, but I am grateful to have had the time now to cook more often, usually multiple meals per day.

What is one thing that you will take out of this lockdown and implement in your life? Even prior to COVID-19, I sometimes had to work at home during the evening or weekend. I have gotten much more efficient at doing so, and will take that with me even after we return to work with the ease of social distancing requirements.

Career advice for young lawyers? While working from home, be sure to make time to connect by phone with one or more of your supervisors multiple occasions per week. It helps maintain or build working relationships much better than only email communications. It also provides an avenue for the small talk that would have otherwise only occurred when bumping into someone in the hall, for example.

Upcoming Bridging the Gap CLE Programs

The New York State Bar Association is pleased to offer newly admitted attorneys a two-day Bridging the Gap CLE program. Transitional courses are designed to help newly admitted attorneys develop a foundation in the practical skills, techniques and procedures that are essential to the practice of law.

The Bridging the Gap continuing legal education program offers 16.0 total credits. Newly admitted attorneys can satisfy all of their annual MCLE requirements by attending this two-day program which is ideal for "bridging the gap" between law school and the realities of practicing law in New York State. Experienced attorneys who have an interest in other areas of practice can also attend and benefit from this program by learning practical information from skilled and experienced practitioners.

Newly admitted attorneys must complete at least 16 transitional CLE credit hours in each of the first two years of admission to the Bar. The first set of 16 transitional CLE credit hours must be completed by the first anniversary of admission to the Bar, in the designated categories of credit. The second set of 16 transitional CLE credit hours must be completed between the first and second anniversaries. To receive skills credit, newly admitted attorneys must take accredited transitional CLE courses in traditional live classroom settings, or through attendance at fully interactive video conference locations that have been approved by the CLE Board for use by newly admitted attorneys. For more information about the CLE Rules, please go to www.nycourts.gov/Attorneys/CLE.

Bridging the Gap | Webinar

Thursday, June 25 - Friday, June 26, 2020 | 9:00 a.m. - 5:00 p.m.

More information found here: https://nysba.org/events/bridging-the-gap-june-2020-nyc/

Thursday, June 4, 2020

When Fear Goes Viral: A Cultural and Legal History of the Fear of Infectious Disease and Unconscious Bias (Webinar)

Long before COVID-19 spread across the globe, cultures that viewed themselves as enlightened and just chose to scapegoat those affected by biological pathogens. This program explores the unconscious historical biases that lead the public to choose scapegoats in a maladaptive attempt to quell fear of the spread of disease.

New Yorkers view ourselves as enlightened but the panic that followed the appearance of COVID-19 revealed a less flattering side. From racist attacks on Asian people to a false narrative that a Westchester County synagogue was the epicenter of COVID-19 infections, fear of a new virus brought to the surface unconscious bias of Asian Americans as perceived foreigners and repeated a shameful history of falsely identifying Jews as the source of plague.

Reactions to COVID-19 brought attention to the forgotten reality of stigmatization and otherization of those affected by infectious disease. The most educated among us can give in to the delusion that infections are spread by communities that the majority see as the "other". Long before the arrival of COVID-19, the LGBTQ+ community was uniquely affected by a panic reaction to HIV/AIDS and even now is viewed as more likely to spread the virus than the general population.

As we face the risk of infection from COVID-19 we must learn to resist temptation to believe we are not vulnerable because we are not a member of a particular community. Perhaps more important as lawyers is that we learn to serve these "otherized" populations in the way that they deserve without discrimination, rejection or fear.

Fear of COVID-19 has already led to discrimination against those who have survived the new virus. Once immunity status can be determined the potential for discrimination based on non-immune status could follow. Now more than ever we need to examine our cultural and legal history to avoid repeating mistakes of the past.

Start Date: June 4, 2020

Start Time: 1:30 PM

End Time: 2:30 PM

Diversity, Inclusion & Elimination of Bias Credit(s): 1.0

More information found here: https://nysba.org/events/when-fear-goes-viral-a-cultural-and-legal-history-of-the-fear-of-infectious-disease-and-unconscious-bias-webinar/

Wednesday, July 29 - Thursday, August 4, 2020

Virtual American Bar Association Annual Meeting - Convening for Justice - SAVE THE DATE!

A message from the ABA President, Judy Perry Martinez:

The ABA Annual Meeting is an event I look forward to attending every year. This will be my 36th. The Annual Meeting enables us to reconnect with friends, meet new ones, and continue our efforts to improve our profession and strive for equal justice for all under the rule of law.

Yet this year is different for all of us. Due to evolving pandemic-related developments, the ABA Board of Governors voted today (April 30) to transition the 2020 Annual Meeting to an online virtual meeting. While we will not meet in person this summer in Chicago, I am pleased that we will nonetheless gather together to continue our important work.

We identified, analyzed, and considered the impact of various factors that would influence the decision to hold an in-person meeting in Chicago, starting with the current State of Illinois shelter-in-place order through May 30. Other factors include air travel limitations and self-quarantine orders for travelers along with social distancing guidelines that are expected to remain in place throughout the summer.

Of course, safety of members, ABA staff, and their families and colleagues were paramount as we analyzed the ability to meet in person. You can find more information about the Board of Governors decision under the Q&A.

The challenges to our traditional Annual Meeting brought on by the pandemic also have triggered creative and innovative ideas from members and staff. We invite all of you to join us for the 2020 ABA Virtual Annual Meeting. For the first time in ABA history, we are offering this entire capstone event as a complimentary member benefit, which will enable even more lawyers to participate, perhaps some for the first time. The virtual meeting will offer the highest quality programming with a revised schedule to accommodate members' home locations and time. Events will include governance and business meetings, CLE Showcase programs, virtual networking opportunities, the General Assembly with the presentation of the ABA Medal, and the House of Delegates. Please check back for the latest information.

Stay well. And know that your ABA is here for you with a fresh, new approach to our always informative and inspiring Annual Meeting that so many of us and our families look forward to each summer.

More information on the virtual meeting here: https://www.americanbar.org/groups/departments_offices/meetings_travel_dept/annual-meeting/

Monday, May 3, 2021

2021 SUPREME COURT ADMISSIONS PROGRAM - SAVE THE DATE!

The Young Lawyers Section is proud to sponsor the 2021 admissions program to the United States Supreme Court. You do not need to be a member of the Young Lawyers Section to participate.

The ceremony for admission to the United States Supreme Court is scheduled for Monday, May 3, 2021. Our last Supreme Court admissions program was well-received and filled up very quickly. Save the date for this exciting event. More information will be available in spring 2020.

For more information please contact Tiffany Bardwell at tbardwell@nysba.org.

Become the voice of newly-admitted and young attorneys in NYSBA. Designed to help make the transition from law school to practice an easier one for newly-admitted attorneys, the Young Lawyers Section connects you with experienced attorneys lending general advice, legal guidance, or expert opinions. Take advantage of educational programs, networking events, and the exclusive Young Lawyers Section Mentor Directory, which is just one of the Section's mentoring initiatives. The Section publishes Electronically In Touch and Perspective. Law students may also join the Section and get a jump start on their careers.

ALREADY A MEMBER OF THIS SECTION? JOIN A COMMITTEE!

Are you interested in volunteering for a Section Committee? Please email Amy Jasiewicz at ajasiewicz@nysba.org and indicate the committees you wish to join. The Young Lawyers Section has the following committees:

• Executive Committee
• Communications Committee
• Community Service and Pro Bono Committee
• Diversity Committee
• Law Student Development Committee
• Long-Range Planning Committee
• Membership Committee
• Mentoring Committee
• Nominating Committee
• Perspective Editorial Board

The Officers of YLS and the Editors of Electronically In Touch wish to make clear that the thoughts and opinions expressed in the articles that follow are those of the respective authors and do not necessarily represent the thoughts and opinions of the authors' employers or clients, the New York State Bar Association, Young Lawyers Section, or its Officers or Executive Committee.