The COVID-19 pandemic presented a variety of challenges for practicing lawyers throughout the country. Among these challenges are the professional and ethical implications involved in participating in legal proceedings and meetings by video applications such as Zoom. Remember the Texas lawyer who got stuck with a cat filter during a virtual court session? Lawyers participating in video proceedings and meetings must be vigilant to not only avoid potentially personally humiliating experiences, but also to avoid violations of the Rules of Professional Conduct.
Consider the following scenario:
A lawyer and his client appear at opposing counsel’s office to take a deposition. Although the deposition was live, another lawyer for the opposing party listened in to the deposition via a Zoom link. During a break, the lawyer and the client discussed confidential matters without realizing that opposing counsel was listening in via Zoom–and taking notes of the confidential conversation.
Did the eavesdropping lawyer hit the jackpot by secretly learning his opponent’s strategy? Or did he commit a potentially serious disciplinary infraction?
Several states have found that a lawyer violates professional conduct rules by eavesdropping on confidential attorney-client communications. See In the Matter of: Robert Neary, 84 N.E. 3d 1194 (Ind. 2017); see also In re Humphries, 582 S.E. 2d 728 (S.C. 2003). Each case is discussed below.
In Neary, the Indiana Supreme Court suspended the respondent for four years after finding that his eavesdropping on confidential attorney-client communications violated Indiana Rules of Professional Conduct rule 4.4(a) and 8.4(d). See Ind. Rules of Prof’l Conduct r. 4.4(a); Ind. Rules of Prof’l Conduct r. 8.4(d).1 The disciplinary complaint in Neary charged respondent with professional misconduct for eavesdropping on confidential communications in two criminal cases while serving as the chief deputy prosecutor.
Count One alleged that respondent and several detectives watched and listened to the confidential attorney-client discussions between a criminal defendant and his lawyer while in custody in the police station. Ten to twenty minutes into the interview, Taylor and Payne discussed a gun allegedly used in the incident under investigation, and Taylor told Payne where the gun was located. A few minutes after that, the audio in the war room was disabled, the room was cleared, and Respondent instructed the detectives not to recover the weapon. Notwithstanding Respondent’s instruction, two detectives proceeded to the site identified by Taylor during his conversation with Payne and recovered a gun. The respondent did not initially notify the lawyer of what had transpired. Three days later, however, respondent notified the defendant’s counsel and self-reported his conduct to the disciplinary commission.
Count Two alleged that respondent again surreptitiously listened to confidential attorney-client communications. A criminal defendant, Larkin, and his counsel agreed to give a statement to investigators in exchange for being charged with a lesser offense. The interview room was monitored by an audio and video feed sent to a control room elsewhere in the police station. About an hour into the interview, the participants took a short break lasting 11 minutes. Larkin and his counsel remained in the interview room during the break. The recording system was not turned off for during the break and continued to record while Larkin spoke with his counsel about several confidential matters, including defense strategy.
About a month later, respondent watched a DVD of the entire interview, including the entire break discussion, even though the privileged status of that discussion either was, or should have been, immediately apparent to respondent. The respondent later provided Larkin’s counsel with a copy of the DVD but did not mention to counsel that the break discussion had been recorded.
The Indiana Supreme Court found that the respondent’s conduct violated Indiana Rules of Professional Conduct rule 4.4(a) (using methods of obtaining evidence that violate the legal rights of a third person), and rule 8.4(d) (engaging in conduct prejudicial to the administration of justice (Counts 1 and 2). In so finding, the court noted that “the constitutional imperative of honoring and protecting the confidentiality of a defendant’s communications with counsel is a principle “[w]e would have hoped . . . too obvious to mention.” Id. at 1197. The Indiana Supreme Court further adopted the hearing officer’s view that “the egregious nature of Respondent’s conduct cannot be overstated” and warrants a sanction at the upper end of the disciplinary spectrum.” Id. The court suspended respondent, who had no prior discipline and who self-reported, from the practice of law for four years.
Similarly, in In re Humphries, the Supreme Court of South Carolina suspended a prosecutor from the practice of law for one year for listening to the video and audio of portions of a readily apparent confidential conversation between a criminal defendant and his counsel. 582 S.E. 2d 728 (S.C. 2003). The prosecutor became aware that a defendant’s conversation with his attorney was being recorded by the police. Although he told the officers to discontinue the recording, he did not ensure that they did so. He did not advise defense counsel of the recording, or follow-up on a rumor that a videotape existed. The South Carolina Court found that the lawyer’s conduct violated Rule 3.4(c)(a lawyer shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists); Rule 3.4(d)(a lawyer shall not, in pretrial procedure, fail to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party); Rule 8.4(a) (it is professional misconduct for a lawyer to violate the Rules of Professional Conduct); and Rule 8.4(e) (it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice).
Louisiana Rule of Professional Conduct rule 8.4(d) prohibits a lawyer from engaging in conduct that is prejudicial to the administration of justice. See La. Rule of Prof’l Conduct r. 8.4(d). This rule is identical to the rules in other states imposing discipline for surreptitiously eavesdropping on confidential lawyer-client communications. For this reason, a Louisiana lawyer could face discipline in Louisiana for surreptitiously listening in on a lawyer-client communication during a Zoom videoconference.2
- The relevant Louisiana Rules of Professional Conduct are identical to the parallel Indiana rules. See La. Rules of Prof’l Conduct, r. 4.4; see also See La. Rule of Prof’l Conduct r. 8.4(d). ↵
- Lawyering in the internet age presents a number of challenges for even the most conscientious lawyers. In an effort to assist lawyers during this time, the ABA recently issued Formal Opinion No. 498 reviewing ethical issues involved in the virtual practice of law. See ABA Formal Opinion No. 498. A blog post summarizing this opinion can be found here. Here is a general rule of thumb to follow: do not do anything online that you would not do in person. In all aspects of practice—but especially in the virtual Zoom court proceedings—lawyers must be diligent in ensuing their conduct comports with the Rules of Professional Conduct. ↵