Technology should not replace the need for in-person contact and in-person relationships.

There has been a lot of talk in articles about how the coronavirus has fast-forwarded law into far more advanced technology and virtual hearings and meetings. Is that the future?

Samuel C. Stretton.

Who knows what the future holds? This writer will be 72 in August and has been practicing for about 47-48 years. But if that is going to be the future, this writer is very glad that he is old and does not have to participate in that kind of practice.

Fortunately, the last 40 to 50 years have been almost the golden age for the practice of law. Until recently, there were many jury trials. Until the last 10 or 15 years, there was still strong collegiality among members of the bar, and there weren't so many attorneys. One got to know almost all of the judges and had the excitement of trials against known and unknown opponents with experienced judicial officers. Young lawyers had the opportunity to get to know many of the older members of the bar including the judges because young lawyers then had an opportunity to go into court regularly. Clients had more money for legal fees and clients still respected their lawyers. There used to be honor among thieves.

The trial and appellate process was far more friendly. There weren't as many cases listed in the Superior Court on argument day, usually 15 instead of 28 cases. The U.S. Court of Appeals for the Third Circuit actually heard far more arguments than it does now. The Superior Court actually wrote opinions that were consistent more with what was argued, and the Superior Court did not look for ways to throw out the appeal, and/or embarrass the lawyer.

In fact, until recently, it was understood you never embarrassed a lawyer in court or in an opinion. You might call a lawyer to sidebar or to chambers, but never publicly, and never before a client. That practice has unfortunately disappeared or been intentionally forgotten.

In days gone by, lawyers did not berate or criticize their opponents, except in the most extreme circumstances. Now, apparently, the first thing many lawyers, particularly in the civil world, do is check the disciplinary history of one's opponent, and any other adverse history, and work that into every brief or motion.

In the past, everyone knew everyone over at the courthouse. Legal papers were filed in person. Young lawyers and old lawyers went over. You developed friendships and met people who would help you out. One usually knew all of the judicial secretaries and the judges because, in those days, one could walk by the judicial chambers and stop in to say hello. Now, of course, they are usually locked away either on a special floor in the courthouse, or in locked areas behind the courtrooms.

This was a wonderful time to practice. This writer remembers when he was sworn in to the Chester County Bar in the early 1980s after practicing in Philadelphia for approximately nine or 10 years, he was told he was the 365th lawyer to ever practice in Chester County at that time. Of course, 40 some years later, and 20,000-25,000 lawyers later in Chester County, things have changed.

Of course, the golden age was not so golden to women, Black lawyers and Hispanic lawyers. That fact must always be kept in mind. But, the personal side of practicing law is what has been forgotten. There obviously are many wonderful things about the modern information/technology revolution that has really altered the practice of law. Clearly, having a law library at one's fingertips by Lexis or Westlaw, or some other legal research programs, is wonderful. The old days of trying to find a law library open at night, or in some courthouses, getting permission to remain in the courthouse law library, or go in the early morning hours, is something the current young members of the bar have never experienced. When doing so, by the way, it was a very odd feeling, particularly in old courthouses. If you believe in ghosts, it is amazing what lawyers working late at night in the old Chester County Courthouse library around 2 or 3 in the morning would see, or at least thought they saw.

Although electronic filing is nice and very convenient, the personal touch is now gone, and no one knows anyone. That is a great loss. Not really seeing and knowing the judges and other lawyers because the opportunity to go into the courthouse is not the same, and not just having time to talk and chat with lawyers because now, almost all communication is done by email, really is a loss. There is no longer a chance to develop friendships like there used to be. To be able to talk to a lawyer and perhaps discuss personal matters, experiences and legal history was a wonderful time. That can't be done by email or text.

Modern use of Zoom or WebEx for hearings or statuses is horrible. Half the time you can't hear, you can't see nuances, and that is not the way law should be practiced, nor was it the way law was meant to be practiced.

There is an art to being a lawyer, particularly a trial lawyer. The elegance of skills, the posturing, collegiality, all make a wonderful mix to help to bring justice and fairness into the courtroom setting. That is slowly disappearing. The sterile use of computers or Zoom cannot replace the need for in-person contact and in-person relationships. These devices would allow the future to be technology and virtual hearings and trials, which would take away the essence of what it means to be a lawyer and a trial lawyer. Technicians and technology will be predominant. The old-fashioned trial skills will be secondary, which will turn out to be a tremendous loss. The loss is to the profession, but also to justice and fairness. Anyone having a Zoom or technology hearing is not going to feel the same as if they are in the courtroom. To experience the courtroom, one feels the majesty of the law in the personifications of judge, and lawyers who know their craft and are doing it well. One of the great aspects of being a lawyer is the sense of independence and confidence a lawyer gains as they argue in court and interact. That is often lost if one is just in an office or at home doing things virtually. The hallmarks of the trial lawyers are their great sense of independence and to make sure justice is served. Trial lawyers just take on cases where they see social injustice, and they handle them because they have the skills, have the confidence, have that sense of independence. Those things are going to be missing in the way the modern world is evolving where technology, virtual practice and electronic communications replace human contact, and the broad human experience. That is what makes law a profession. You can't be a professional lawyer if you are predominantly a technician. It doesn't work that way. There is an intangible quality that has made the practice of law one of the most noble of professions throughout the history of this country, which is being lost in the now rapid shift to technology.

Therefore, in the perspective of an older practitioner, the future does not bode well, but it could change, and perhaps, the next generation of lawyers will not be totally enamored by technology. After all, most technology is unethical since it can't be properly secured. Using email without the most advanced security is violating Rule 1.6 for confidentiality. Doctors don't email for the obvious reason of patient confidentiality, and lawyers shouldn't either, unless their phones are securely encrypted. The great qualities of the trial lawyers, particularly during the last 40 or 50 years, remembered and became the norm. Law is really a human business with human beings solving human problems and seeking human justice. Technology cannot replace that.

The broad nature of Pennsylvania's new professional conduct rule creates some worrisome issues.

What are some of the problems one could face now with new Rule 8.4(g) that, in essence, prosecutes one for discriminatory conduct, or perhaps even discriminatory thoughts?

New Pennsylvania Rule of Professional Conduct 8.4(g) has been talked about several times by this writer in some recent columns. Obviously, this writer feels it was a mistake to have this rule passed, but it is the rule now and everyone has to be aware of it. The rule starts out by saying, "in the course of representing a client, knowingly manifest by words or conduct, discrimination and/or harassment on the basis of race, color, sex, sexual orientation, national origin, age, disability, or religion," is professional misconduct. Further, a lawyer can't retaliate against someone who complains about this conduct. See Rule 8.4(g).

The question becomes where to draw the line. What specific conduct could potentially trigger a rule violation?

This writer remembers speaking at an ethics seminar and talking about screening lawyers who move to a new firm when they had conflicts due to representation with the prior firm. Traditionally, this was called creating "a Chinese wall." Obviously, that is probably not a wise use of terminology now. This writer remembers about 10-12 years ago referencing the "Chinese wall" in the screening process, and having some very negative reactions from members of the audience, and probably rightly so. Would that be a violation of Rule 8.4(g)? Hopefully not since it would not have been meant as intentional discrimination. It was more using a historical legal phrase to describe the screening process without recognizing the choice of words was not the best.

Another example of this writer was during a civil deposition questioning someone about physical therapy and rehabilitation when a person mentioned doing push-ups on the wall because they couldn't do the normal push-ups due to their injuries. This writer said, "You mean, girl push-ups?" Anyone who was a young person who played sports 50 to 60 years ago would clearly remember that the wall push-ups were called "girl push-ups" then. Although this was said out of innocence as a frame of reference, the court reporter was very upset with that terminology. Perhaps, again, rightly so. But would this violate Rule 8.4(g)?

As one can see, there is some concern. The American Bar Associations standing committee on ethics and professional responsibility, on July 15, 2020, issued formal Opinion 493, which talks about the purpose scope and application of American Bar Associations Model Rule 8.4(g). The model rule is somewhat different than Pennsylvania's rule. It talks about engaging in conduct that the lawyer knows or really should know is harassment or discrimination on a basis of race, sex, religion, etc. It is different from Pennsylvania's rule where the Pennsylvania rule notes, "in the course of representing a client, knowingly manifest by words or conduct…"

Therefore, Pennsylvania is more words and thought than the model rule. Having said that, there are some applications that were set forth in this formal Opinion 493. The opinion talks about harassment, including badgering or invasive behavior, or demeaning or derogatory behavior. This is what is suggested in the formal opinion. The formal opinion also discusses what discrimination means in the context of modern Rule 8.4(g). It talks about use of racist or sexist epithet with the intent to disparage an individual or group of individuals. For instance, the opinion noted a case where a lawyer engaged in bias or prejudice in a personal bankruptcy proceeding by distributing fliers and referred to opposing counsel as "blood-sucking shylocks." That clearly would fit in discriminatory conduct, which is prohibited by the rule.

The committee talked about the First Amendment in this new Rule 8.4(g). This was surprising because usually ethics committees don't get into constitutional issues. The committee noted that "courts have consistently upheld professional conduct rules similar to 8.4(g) against First Amendment challenge." Of interest is the hypotheticals the committee suggested. For instance, the first hypothetical with a lawyer being in violation of Rule 8.4(G) was in the context of a religious organization challenged on First Amendment grounds. The ordinance required all schools to provide gender-neutral restrooms. The question the committee discussed in the hypothetical was whether the lawyer violated the rule by accepting the representation. The answer of the committee was the representation would not violate the rule since representation did not involve conduct covered under Rule 8.4(g).

The next hypothetical was a lawyer at a CLE program who expressed his view that using a race-conscious process in admitting minority students to top colleges was wrong and it would be better for them to go to lower-ranked schools. The committee said that the viewpoint expressed by the lawyer during CLE would not violate Rule 8.4(g) since it was not really harassment or discrimination. The committee noted the fact that others might find the lawyer's expression of social and political views to be inaccurate, offensive or upsetting is not the harm required for a violation.

Another hypothetical the committee had was a professor at a law school clinic making comments about the student's appearance and having nonconsensual physical contact such as putting a hand on the student's shoulder. The committee said that would be an obvious violation of Rule 8.4(g).

Another hypothetical given was a senior partner during orientation for associates indicating "Rule 1 should be, never trust a Muslim lawyer. Rule 2 should be, never represent a Muslim client." That kind of conduct would clearly violate Rule 8.4(g) according to the committee. Those remarks are discriminatory and manifest bias against Muslims as set forth in the ethics opinion.

The committee ended by suggesting that model Rule 8.4(g) does not prevent a lawyer from freely expressing opinions and ideas on matters of public importance. The committee noted, "The fact that others may personally disagree or be offended by a lawyer's expression does not establish the violation."

The opinion did make the point that whether this rule is good or bad, lawyers have a duty because of their public role to not engage in discriminatory conduct. The committee stated as follows, "Discriminatory and harassing conduct, engaged in by lawyers in connection with the practice of law engenders skepticism and distrust of those charged with insuring justice and fairness." Of course, that is right, but the problem is, at least in Pennsylvania, having a rule so broadly drafted. No one should act that way, but should it result in professional discipline is, of course, the issue. The committee believes it should and states, "Enforcement of Rule 8.4(g) is therefore critical to maintain the public's confidence and the impartiality of the legal system and its trust in the legal profession."

Of course, the devil is always in the details, and how Pennsylvania's broader rule will be interpreted and enforced remains to be seen. But the broad nature of Pennsylvania's Rule 8.4(g) creates some worrisome issues, particularly if there is going to be strict enforcement. The intolerance of present modern society on speech related issues is very broad and strong, and very worrisome if applied to the application and enforcement of Pennsylvania's Rule 8.4(g).

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.