This email was prepared by the Kansas Office of the Disciplinary Administrator, reprinted by the Kansas Bar Association.
YES or NO
In accordance with Kansas Supreme Court Orders concerning court operations during the COVID-19 pandemic, the district court where attorney Marcus practices is scheduling cases for virtual hearings using Zoom, an electronic audio-visual communication program. Marcus does mostly transactional work and has very few litigation cases. As a result, Marcus has not yet participated in a virtual hearing.
In a case Marcus recently became involved in, the district court notified counsel that a pretrial evidentiary hearing will be held remotely through Zoom. Marcus is concerned because he has limited computer skills and has never used Zoom or any other kind of online video conferencing program. Marcus filed an objection to the online hearing and requested that it be held in-person. In the objection, Marcus argued that he cannot competently represent his client through a remote hearing because he is not proficient enough with computers to use Zoom. He also asserted that he should not have to try to learn how to use remote conferencing because he does so few litigation cases.
Does Marcus have an obligation under the Kansas Rules of Professional Conduct to learn how to use remote conferencing programs?
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KRPC 1.1 requires lawyers to provide competent representation to a client. “Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” KRPC 1.1. As the comments to this Rule explain, the duty of competence requires lawyers to stay current with changes in the requirements involved in practicing law, including the use of technology:
“To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology[.]”
KRPC 1.1, cmt. .
Because of the pandemic, the requirements involved in competently practicing law have changed and lawyers now must be able to use the remote conferencing programs courts are using to conduct online proceedings. This is true not just for court proceedings, but for other aspects of the practice of law, including depositions and interviewing witnesses. Failing to adapt to this change can render a lawyer unable to provide competent representation as required by KRPC 1.1.
There are many resources available to help lawyers learn about these programs and how to use them. The following information was provided by Danielle Hall, Executive Director of the Kansas Lawyers Assistance Program. KALAP provides not only confidential support and resources for lawyers experiencing mental health and substance abuse issues but is also an excellent source for assistance with law practice management. A full description of KALAP’s law practice management program and how to contact KALAP for law practice management consultation is on KALAP’s website at: https://kalap.com/law-practice-management/. Thank you, Danielle, for providing these resources to share with Kansas lawyers in this Refresher!
Video conferencing resources:
Lawyers should check their local jurisdictions for guidelines on participating in virtual court proceedings. For example, Douglas County has the following published guidelines: https://www.douglascountyks.org/sites/default/files/media/depts/district-court/pdf/guidelines-court-hearings-zoom.pdf
Zoom Video Tutorial Library: https://support.zoom.us/hc/en-us/articles/206618765-Zoom-video-tutorials
“Zoom 101: Zooming with Zoom,” a recorded program presented at the ABA’s 2020 Virtual Annual Meeting: https://www.americanbar.org/groups/judicial/events_cle/program-library/zoom-101-zooming-with-zoom/
“Zoom Training for Lawyers”: https://senseient.com/wp-content/uploads/Zoom-Training-for-Lawyers-and-Using-it-Securely-Revision-5.pdf
Tips on how to look and sound your best in video conferences: https://www.ksbar.org/blogpost/1106646/346093/Quick-Tip-Look-and-Sound-Your-Best-on-a-Video-Conference
If you have a question about your ethical responsibilities, please contact the Disciplinary Administrator’s Office at (785) 435-8200.