The courts should be spending time getting people back into the courtroom.

I have seen many articles about how the practice of law and trials and hearings will be different and, in the future, be very much in tune with technology. Is that going to be the future? 

Samuel C. Stretton.

With great glee, many younger lawyers have engaged in extremely advanced technology talk about how the COVID-19 pandemic has forced the courts to change and get rid of longstanding traditions. At least, in the short run, they may be right with courts talking about hearings by Zoom, other videoconferencing methods or telephone hearings, etc. Some courts are even talking about virtual jury trials in some states. Hopefully, that will not be the future.

There is a great reason to keep certain traditions. One of the great traditions is trial advocacy. It is in-person. It is being in the same room with a witness. Juries see the witnesses. Experienced trial lawyers know the jurors pick up on many things. A Zoom trial is not going to show many things that jurors will pick up on or see in a courtroom.

Trial advocacy cannot be done electronically. One has to see the judge and listen. Zoom or other videoconferencing is not good enough. Trial advocacy is a true art. It takes years to gain the skills to help to ensure justice and fairness.

Of course, the state Supreme Courts can order courts to do things by technology but by doing so, they can undermine the fundamental right to a fair trial and the right to confront witnesses. There is nothing that replaces human to human trails with experienced advocates. No amount of technology can come close to replacing it or aid in the search for justice.

Second, younger lawyers state with glee, now, we don't have to go to cattle calls and we don't have to have so many people in the room, and everything can be done by Zoom. But that would be a horrible way of practicing law. Law is a personal business. In going to these cattle calls and going to courtrooms and waiting one's turn, lawyers get to know each other. They get to talk about the practice of law. They get to know the judges. This is irreplaceable. Trying to talk to a young lawyer who is texting their friend who is standing beside them, or things of that nature, gives one an idea of what modern technology might produce in undermining the trial experience. There would no longer be the collegiality or the friendships. Everything would come down to the smartphone, iPad or laptop computer. It would be a horrible way to practice law and to try cases.

Perhaps the best way of saying it is that trial advocacy is not replaceable through the lens of computers. Trial advocacy is a very personal skill and depends on human contact and human interaction in the public courtroom. Whether it is before a jury or a judge, or before multiple judges on the appellate courts, it cannot be replaced by some lesser form of long-distance law practice.

Perhaps a crude analogy would be that old fashion trial advocacy versus computer technology is the same as reading a great book or novel as opposed to listening to a condensed summary. It is not the same.

Courts have to focus on getting courtrooms back in operation where lawyers appear and perform their traditional and sacred duties of trial advocacy seeking justice.

Unfortunately, the younger generation had so few jury trials that they don't recognize the benefit and nuances of true advocacy. They are like an art student in Art 101 going through a museum and speaking about what he has seen. It might sound good, but in reality, they don't know what they are doing. Advocacy by computer or iPad or Zoom or whatever is not efficient advocacy and misses many of the true aspects of a trial. Courts should not spend their money and time developing this new world of electronic communication. The courts should be spending their time getting people back into the courtroom.

The U.S. Supreme Court understands the value of tradition and understands the importance of in-person oral argument done in a professional and proper way. This reason has always been behind the reluctance to change. Nothing can replace that.

It is this writer's opinion that any lawyer who gives up the right to an in-person preliminary hearing to allow it to be done by video, or in most cases, gives up the right to in-person depositions, or gives up the right to an in-person trial, is guilty of gross malpractice and doing a real disservice to their client.

Of course, the judges will push for these lesser and easily handled matters by technology because of the backlog. Speedy trial would be satisfied, but the fundamental justice would be denied. Many people will talk about how the court needs to make major changes in trial advocacy, but it's all wrong.

In the current world, of in-person trials, there are enough mistakes made, that it would be frightening to think what mistakes and injustice would occur if everything was done through technology one step removed. It also would be frightening to think about what the world of lawyering would be like. Lawyers would give up the right to get to know judges personally, get to know other lawyers personally, and give up the right to participate in courtrooms on a regular basis.

Trial and appellate advocacy are limited in terms of how "efficient" one can make them. For those who are pushing to change trials or appeals for technology reasons, let them hope that they are never a defendant or party in a civil or criminal case where their fate is decided by a computer screen and where they are represented by advocates who barely have a chance to learn or savor the courtroom. The old-fashioned virtues of the great trial lawyers and great trials have not been diminished or changed by the 21^st century and this overblown information age. Law is a personal business. It is not and cannot ever be translated into a computer business. Just think what has been lost by the computers. Pre-computer, when people had to file things, they got to know everyone in the clerk or prothonotary's office. They got to know everyone in the courthouse. All that is gone now. Lawyers hardly know each other.

Tradition and custom is an important and necessary part of trial advocacy. There is good reason for this. The dignity and awe of the courtroom and trial are extremely important components. Jury trials could be started immediately with minor adjustments such as bringing in 200 to 300 people, and all jurors for trial for three weeks be selected that day, and jurors would sit in the courtroom gallery, six feet apart. The hope is that the pandemic and all of the irrational fears have arisen from it will not destroy the essence of the practice of law and the seeking of justice. It is hoped that there will be enough wisdom in the courts to return as soon as possible with the old-fashioned way of doing trial advocacy and appellate advocacy and that the filtering of all that through computers and video screens will be recognized for what it is, a pale imitation and a way to cause failure in the administration of justice.

Anti-competitive clauses and should not be allowed in lawyer employment contracts.

I am drafting a partnership agreement and I would like to put in that any partner who leaves has to give three months notice and must remain with the firm during those three months in the orderly transition. Is this ethical?

It is an interesting question and unfortunately, many firms do have a 30 or 60-day time period on ice when a partner gives notice. Sometimes, the partner does nothing more than sit in their office.

The pertinent rule would be Rule 5.6 of the Rules of Professional Conduct. That rule states very clearly, "A lawyer shall not participate in offering or making a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement or an agreement for the sale of a law practice consistent with Rule 1.17."

In the very brief comment, it states as follows: "An agreement restricting the right of lawyers to practice after leaving a firm not only limits their professional autonomy but also limits the freedom of clients to choose a lawyer."

The comment to the rule does not discuss the 30-, 60- or 90-day notice requirements before the lawyer can actually leave the firm. Some of these employment contracts actually have some financial punishment if a lawyer gives notice and leaves sooner. There is very little case law on this particular issue. To this writer's knowledge, there does not appear to be any appellate cases on point. Also, there does not appear to be any ethics opinions on what such clauses violate the Rules of Professional Conduct Rule 5.6. Common sense would appear to suggest that this is a very uncompetitive anti-client rule and the requirement to wait for 45, 60 or 90 days undermines the purpose of the rule.

From a practical standpoint, anyone knows when a lawyer, whether a partner or employee, gives notice that they are leaving, the 30 or 60 days after that are critical. Unless someone is doing a complete change of their life and never practicing law again, most lawyers are leaving to go with another firm and hopefully bringing their clients with them. Obviously, clients who lawyers have been representing have the right to choose to go with that particular lawyer. The Pennsylvania Bar Association has issued several legal ethics opinions that allow letters to be sent either by the lawyer or jointly by the lawyer and the firm to clients giving them the choice of whether to remain with the old firm or go with the lawyer. From a practical standpoint, these long delay periods would undermine the whole purpose of giving a client a choice of counsel. The lawyer cannot setup their own practice, and cannot start having clients come to them if they have to sit in their former firm's office for 30 to 90 days. The clients will be deprived of their choice of going with the lawyer if they have to wait 90 days. It would appear this is a very anti-competitive clause and should not be allowed in these lawyer employment contracts.

The question appears still to be an open one without any definitive decisions. But, in the world of ethics, part of the way to stay on the right side of the ethical requirements is to understand the purpose and spirit of the particular rule at issue. The Rules of Professional Conduct are very clear that there cannot be any anti-competition clauses and cannot have any restrictive covenants. Clients are not property. Clients have a right to choose a lawyer and lawyers have the right to have clients choose to go with them when they leave the firm. With that sort of understanding, it appears fairly clear that rules delaying by 30, 45, 60 or 90 days after notice of termination is given would defeat those purposes and would appear to violate Rule 5.6.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 47 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 103 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.