The Speed of Change in Legal Practice
In the first post of this series, I looked at the results of the 21st Century Task Force which was spearheaded by the Michigan Bar Association and charged with proposing solutions to what that Task Force defined as a “dysfunctional legal marketplace”. The Task Force focused on access to justice and looked both at our profession and the court system in that regard. They completed their work in 2016. They proposed some daunting solutions that can only really be appreciated by reading their very complete conclusions. I hope my readers will do so and you can find the complete survey here. I concluded with both an observation and a question. Michigan Supreme Court Justice Robert J. Young, Jr. wrote in the Task Force forward:
I urge members of the bar to review the findings and recommendations with a sense of urgency because the long term health of our profession is at stake.
A sense of urgency? It has now been eight years since the Task Force made known its findings and recommendations. I observed, is that really too long? After all, it’s a lot to do. We all know the legal profession moves slowly. If we accomplish some changes to our dysfunctional legal marketplace, say in the next twelve years, isn’t that urgent enough? I concluded “is there anything that could happen that would massively accelerate this need to change our dysfunctional legal marketplace”?
We most certainly know the answer to my question now. Never in my lifetime did I anticipate a pandemic. In my now more than 30 years of practice I never anticipated the entire court system would shut down. Equally, I never anticipated my office would be closed and my staff and I would struggle to really learn to “work from home”. But we did it! And having done it, I am struck by WHAT HAPPENED TO OUR COURT SYSTEM?
Our courts at virtually every level, District, Circuit, Appeals, and our Supreme Court have fully accomplished the goals of the 21st Century Task Force in just over one year. They have accomplished access to justice. If your experiences are similar to mine, then you have gotten up early, driven to a courthouse, waited in line and checked in, then you waited some more just to get your 10 minutes before the judge to argue a motion or do some other similar task. It could take up to four hours of my day to do this with time included to get back to my office. I openly confess my clients paid for more than 10 minutes of that time. Half of my day was gone and this is a business. And again, if your experiences are similar to mine, you’ve represented a client who was informed, who didn’t have transportation or who otherwise found it difficult if not impossible to appear in court to see their matter addressed by the Judge. The mere fact they couldn’t be there often meant they felt like justice wasn’t served. And now what happens? I can do that motion in 10 minutes sitting in front of a computer in my office or my home. It actually takes 10 minutes because I can do other things while I wait. And just as important, my clients can now participate in their legal matter with the same convenience.
The whole court system has accomplished access to justice in one year. But where is the legal profession in accomplishing the goals set forth by the Task Force? We are doing some things differently admittedly. We are using video and our cell phones and email and even messaging. We’ve learned how to work from home and that has improved our availability. But how did the court system get so far ahead of us and so quickly?
The court system is an open forum available to the public at all times as a result of both our Federal and State Constitutions. Nothing is private that happens in a court room. In fact, well before the pandemic all courts in Michigan were live on YouTube including our Michigan Supreme Court. Of course, we are all concerned with security but the court system does not have to be concerned with privacy. Therefore, Zoom was the perfect solution for the courts. There were some early hurdles like Zoom Bombing and attorneys that appeared as cats (which made the internet rounds) but even those events, while being a bit embarrassing, didn’t really affect the Court’s ability to use any form of communication. Zoom is not the only platform used by the Court’s to accomplish this amazing task in one year. It should also be recognized that our Michigan Supreme Court entered multiple Orders to change procedures on an emergency basis to allow the Court system to accomplish this.
The legal profession does lag behind the court system when it comes to access and there is a reason why that is true. It is because as licensed attorneys we are charged with creating one of the most fundamental issues of privacy – the attorney/client privilege. The very corner stone of the legal profession. That thing that often means a client may tell us something they wouldn’t tell their physician or their clergy. Why? Because our entire legal system is built on the concept of attorney/client privilege. And establishing that privilege rests with us. There are countless treatises, books, opinions, cases, and analysis attempting to define attorney/client privilege. While I’ve read many of them, I certainly can not claim to have read them all. Those I have read do have one thing very much in common and that is whether or not the attorney/client privilege exists is very much fact and circumstance driven.
In the brick and mortar world, when we meet a client for the first time in our lobby and shake hands, no one, especially our client, understands that is privileged. But when we retire to our office or conference room, close the door and sit down to talk, every client expects what they then say to be privileged unless, for some reason, we warn them that the conversation is not privileged. We’ve all had an experience where the client brings a confidant that the client wants to join the meeting. With very few exceptions we have to warn that client that what they then say is not attorney/client privileged. But in the brick and mortar world we can see that confidant. We know they are there. That is not necessarily true when the conversation is online.
If, as attorney, you are having any form of communication with a client “on-line” do you know with certainty that a developer or other employee of a provider of the service you are using can’t or isn’t listening to or recording that conversation? Most of us are not developers, so of course we don’t know that. We have a very heavy burden and responsibility to establish attorney/client privilege that no one has but us. The consequences for being wrong would be devastating. And, if you’re like me, you don’t want to be the first attorney to find out you were wrong and your conversation was not privileged or worse yet, to see that conversation posted online.
So, the big question today is, can the attorney/client privilege be reliably accomplished online?