By Paul Monaghan -
The challenges brought by the Covid-19 pandemic required the legal profession to quickly adopt new ways of working. One of the most significant and lasting changes was to the formal procedures for appearing before the Court.
The ability to appear before the Court online has given practitioners more flexibility in their legal practice, while saving time spent travelling to and from Court. Online Court appearances have also allowed a more flexible system for Court listing timetables. These benefits will likely mean that use of audio-visual technology to appear before the Court will become more and more common in all jurisdictions.
However, when using these new technologies, the obligations upon every solicitor still carry traditional and ethical obligations.
Using the Online Court and remaining in the familiar surroundings of the solicitor’s legal office should not result in any erosion of the formality and courtesy that is required. Formal proceedings online must be treated at the same level as if it were ‘in-person appearances’ before the Court. All solicitors have an ethical obligation not to deal with the Court on terms of informal personal familiarity[1] and to ensure that professional standards are upheld. Practitioners are therefore reminded to review their ethical obligations and understand how these obligations are to be applied in an Online Court environment.
Fundamental duties
Practitioners are in the first instance reminded that, regardless of appearing before the Court in person or online, they have the same paramount duty to the Court and to the administration of justice, namely, to “…ensure the integrity of the Court process and system of justice.”[2]
Secondly, they have a fundamental duty to uphold the “…integrity and professional independence…” of solicitors within an independent Court system.[3
Formality and familiarity on-line
The obligation to maintain formality before the Court at all times extends to Online Court appearances by solicitors in all court work. Formality is a component of integrity and necessary to maintain public confidence in the Court system.
The professional standards applied to Online Court appearances should never be equated with the informality of a Microsoft Teams meeting or Zoom call between colleagues, where informality or familiarity by the solicitor to the court may be inadvertently displayed. There must be a complete absence of informality or personal familiarity before the Online Court “… that may reasonably give the appearance that a solicitor may have special favor with the Court….”.[4]
Appearing online should never be confused with a waiver of formality and permit familiarity within Online Court proceedings. Practitioners must ensure they dress appropriately, are well-presented and are placed before an appropriate background.
There should be no distractions in the background, such as people passing by, or other activity within the focus of the camera. Sound should be controlled with the ‘mute’ button when not addressing the Court directly.
In no circumstances should artificial intelligence be used for court appearances. This must be strictly observed, as not only do solicitors have an obligation not to mislead the Court, but the need for formality encompasses the need for frankness and authenticity.
Formality will ensure the absence of any conduct that may jeopardise the integrity of the Court when observed by the public or any other party online.
As in the physical Court, casual remarks with greetings or salutations to judicial officers may yield“…substantial misperceptions … and are prejudicial to the conduct of a fair trial.”[5]
Formality is more than just a ritual for the sake of court tradition. It is an important safeguard in maintaining the integrity of the justice system. Perception is important to the lay observer, “…comments, gestures or mannerism that may be construed as communication on an informal and familiar basis …… may be severely detrimental…” to maintaining the public confidence in an impartial, unbiased and disinterested Court.[6]
The future
The future for solicitors will likely entail an increasing use of the Online Court; however, the traditional need for formality in all Court proceedings, both in person and online, must be maintained.
