Using Remote Technology in Legal Practice: Attorney-Client and Attorney-Staff Relationships

Using Remote Technology in Legal Practice: Attorney-Client and Attorney-Staff Relationships

10.14.2020

By Kelsey R. Ruszkowski & Samuel J. Blanton

Introduction

Even before the spread of COVID-19, the use of technology has quickly become an integral part of our everyday lives and has shaped the way we communicate with one another. Communicating remotely is a new societal norm, whether through social media, video conferencing, phone calls, or text messages. This form of communication has extended beyond the social realm and into the professional world. Even though remote technology is widely used, business executives generally prefer to meet in person rather than through some form of technology.¹ These executives prefer in-person communication because they believe that it helps them build stronger relationships and enables them to read the body language of the person with whom they are communicating.² In the legal realm, nearly three-fourths of attorneys report using some form of telecommuting in their legal practice, meaning that they use technology to communicate while outside their office.³ However, these statistics do not provide information concerning the extent to which technology is used by attorneys when communicating with their clients. While remote communication is rapidly increasing in the legal field and society in general, in part because the pandemic has left little other choice, there has been very little study on how remote technologies influence the practice of law. We studied the effects of remote technology on relationships between attorneys, their clients, and other staff members in a setting outside of criminal law.

Past Studies

Due to the limited nature of our study, past research concerning relationship formation, whether between two peers, a therapist and their patient, or an attorney and their client, can inform research on attorney-client relationships outside the courtroom.

I. Technology in Interpersonal Relationships

Research has been conducted concerning how different modes of communication influence interpersonal relationships.⁴ In one study researchers reviewed the interpersonal relationships formed between unacquainted college students when communicating either through text message, audio, video, or face-to-face. Students then met a second time using Skype.⁵ After having a conversation, participants would rate how much they liked the other person, the level of connection they felt, how much they enjoyed the interaction, and how responsive they felt the other person was.⁶ The conversations involved asking predetermined questions and had a time limit.⁷

For the first interaction, communicating via text message resulted in a significantly weaker relationship than when using other modalities; the face-to-face condition resulted in the most positive interaction.⁸ Interestingly, participants in the audio condition overall rated their experience slightly more positive than those participants in the video condition.⁹ This suggests that, at least in regards to brief interactions, communicating using only audio can result in near identical or improved interpersonal relationship strengths as when using video communication.¹⁰ When participants met for a second time using Skype the strengths of the relationships in all conditions increased to similar levels with a range of .15 out of seven. ¹¹ This suggests that the modality used in the initial interaction does not influence future communication.¹² The results further suggest that over time, the strengths of interpersonal relationships formed over video or audio communication can reach the same level as those relationships formed face-to-face.

When video conferencing is used to communicate some of the nonverbal cues involved in communication are lost.¹³ Consequently, the level of trust developed between two speakers may be distorted.¹⁴ For example, video conferencing speakers are less capable of detecting sincerity but are also less capable of detecting deception.¹⁵ Further, in negotiation tasks individuals trust each other less when more visual cues are available.¹⁶ This finding actually makes remote communication more appropriate for negotiation-type tasks as it limits the social cues available to the parties. When parties use remote communication while negotiating, many of the negative cues they expect in a traditional negotiation setting to confirm their preconceived connotations are no longer available.¹⁷

II. Remote Therapy

A relationship similar to that experienced by an attorney and their client is that of a therapist and his or her client. Both involve repeated exposure and require strong interpersonal relationships. While there has been little study of the attorney-client relationship, there has been some research into the therapist-client relationship. Therefore, research into the therapist-client relationship may inform rapport development in the attorney-client relationship.

When comparing in-person to internet therapy there was no significant difference in treatment effectiveness.¹⁸ In regards to the interpersonal relationship between therapists and their clients, there was no significant difference when clients rated their working alliance with their therapists between the in-person and videoconferencing conditions.¹⁹ The same was true when the therapists rated their working alliance with their clients.²⁰ Working alliance included such factors as: understanding, common goals, trust, and confidence in a therapist’s ability to help.²¹ This suggests that there is no significant difference in a counseling relationship when remote communication is used as compared to in-person communication. These findings may be transferable to the relationship formed between an attorney and their client.

Remote Communication in the Courtroom

Even in ordinary circumstances it may be difficult for a client to retain an attorney, whether due to geographic limitations, lack of funding, etc. Although an attorney may be available, they might not have the skillset appropriate for the particular case. Using remote technologies provides a solution to this problem. When utilized in the courtroom, video conferencing tools allow attorneys, clients, and judges to appear from remote locations. Based on a survey from the National Center for State Courts conducted in 2010, approximately 60% of state courts used video conferencing in criminal proceedings.²² In some criminal trials defendants have even appeared remotely in court.²³ However, this arrangement can be less than ideal.

As expected, there are limitations experienced when lawyers communicate with their clients remotely in a courtroom. For example, when a defendant is appearing remotely the attorney no longer has the ability to pass notes or to signal a client to adjust their behavior while in court.²⁴ This in effect limits an attorney’s ability to advise a client and limits a defendant’s ability to consult an attorney while in the courtroom.²⁵ Further, appearing in court remotely influences how a defendant behaves, although the change in behavior is difficult to predict.²⁶ Some may appear more relaxed while others appear more nervous due to the thought of an “invisible audience” watching them.²⁷

There is no significant difference in criminal defendant ratings of their relationship with their attorney while communicating via video conference as compared to in person.²⁸ Additionally, modality has no significant effect on defendants’ perceived level of participation in their case nor on their level of trust in their attorney.²⁹ In a recent study only 10% of defendants reported that they would be reluctant to communicate with their attorney through video conferencing in the future.³⁰

Of primary concern are the privacy interests of the defendant as well as the potential negative biases that may be introduced when the defendant is not physically present in the courtroom.³¹ Additionally, if an attorney and client try to communicate remotely there is an increased risk of others overhearing their conversation. This may inadvertently waive the attorney-client privilege and threaten the defendant’s right against self-incrimination. Therefore, both attorneys and their clients must be more aware of their surroundings when communicating remotely.

Present Study

I. Remote Attorney-Client Relationships Outside the Courtroom

Although remote communication such as emails, phone calls, and video conferencing are commonly used in the legal profession, exactly how this influences the working relationship between an attorney and their clients has yet to be studied outside the courtroom.³²

A. Potential Problems

Without previously being acquainted with clients, communicating remotely may limit an attorney’s ability to develop rapport with their client due to the limited number of visual cues available to each party as compared to in-person communication. Fortunately, this difference may not be significant if the people communicating are already familiar with each other.³³ However, there have not been studies that address this concern when it comes to attorney-client interaction in a transactional setting. Further, using remote technology runs the additional risk of hindering communication due to technological difficulties.³⁴ Like in the context of the courtroom, a remote attorney-client relationship outside of court bears the same problem of risking an unintentional waiver of the attorney-client privilege.³⁵ Therefore, in order to study the effect that remote representation has on rapport we must be cognizant of confidentiality and privilege concerns.

In real world situations, clients may live in remote areas and may not have access to an attorney’s office with a remote technology setup as used in this study. This study’s use of an office-to-office setup aimed to control for clients who may not be comfortable using technology and to ensure confidentiality. Confidentiality may be the biggest concern after client comfort when it comes to remote representation. When using a video conferencing platform, it is important to inform the client about the nature of confidentiality so that it is understood that there should not be other people off-screen who can hear or see the communication.

A lawyer’s ethical responsibilities requires the lawyer to take reasonable steps to ensure confidential information is protected.³⁶ When it comes to selecting what technology to use, lawyers should be aware of how a firm’s system stores communications. The platform used here, Omnijoin, contains communications to the individual session and, unless saved by either party, all communications are deleted when the meeting concludes. In contrast, Skype keeps an ongoing chat history that remains until deleted. Regardless of the platform used, as long as the attorney is aware of how that platform stores communications and is able to control what happens to confidential data, there should be little fear regarding leftover confidential data. If a communication platform uses a password, it is important that the firm use a strong password to ensure left-over data from a communication is not accessible.

B. Method

In order to examine how communicating remotely influences rapport with a client, we developed a survey that asked clients to rate the degree of comfort they felt when interacting with their attorney, their level of satisfaction with their attorney’s commitment to their case, and their likelihood of retaining the attorney in the future. Additionally, clients were asked if they experienced any technical difficulties while working with their attorney. The survey was administered electronically to participants through email. Clients were contacted by their attorney through email, phone, video conference, and in person.

To minimize the occurrence of technical difficulties experienced by clients while video conferencing, the law office designated a private room for video conferencing and set up the necessary technology for clients to use. This method not only allowed for more consistent experiences for the clients employing the video conferencing modality but also minimized the chance of a confidentiality breach.

C. Technology Used

Besides normal phone and email, a basic video conferencing setup was used for this study. The attorney’s remote office had a webcam set up with a built-in microphone and a standard monitor display. The main office also had a basic webcam with a built-in microphone as well as a monitor display. Because the video conferencing environment was controlled in this way (that is, it was insulated from client manipulation), the choice of video conferencing software was influenced by the need for ease of use from the broadcaster’s perspective. The direct set-up eliminated concerns about a client’s potential technological limitations.³⁷ This office-to-office setup also functions to minimize the risks of a compromise to confidentiality. Omnijoin works well for remote client interactions because it has, amongst other features, an integrated document editor. The attorney was able to mark up a document (be it contract or will) to highlight and explain various parts to a client.

The video quality was not an issue and there was no reported lag or other technical problems with the stream. The results indicate that high-definition video conferencing is not needed for positive results. It does follow, however, that a high-definition video conferencing setup in an office may be more impressive to a client and at least clearer in regard to social cues. The cost effectiveness of such a setup would of course depend on the frequency of use and if new clients were met for the first time remotely.

D. Results

Overall, regardless of the form of communication used, all clients were “extremely satisfied” with the legal work performed on their behalf. The number of times the client had worked with the attorney in the past did not influence the level of satisfaction with the attorney’s work nor the level of comfort when communicating with an attorney. There was one client who was only “somewhat comfortable” when communicating via email rather than in person. However, all other clients were “very comfortable” with every communication modality used. All clients expressed that they were either “very likely” to or would “definitely” recommend this attorney to their friends and would use this attorney again if the opportunity presented itself. This suggests that the clients had a high level of trust in their attorneys’ ability and commitment. No clients experienced any technical difficulties while communicating and one client praised the efficiency that came with communicating remotely.

II. Remote Co-Workers

Although attorneys may work remotely, they will still have to communicate with their coworkers. The key characteristics necessary for a successful relationship between a remote worker and those in the office are trust and flexibility.³⁸ Concerns that are often expressed regard to remote workers include that the worker will not work as efficiently or will complete less work than if they were in the office. In fact, the opposite has been shown to be true.³⁹ Additionally, remote workers who spend 60–80% of their time outside the office actually report feeling more engaged with and valued by their companies than traditional employees working onsite.⁴⁰

A. Problems commonly experienced by remote workers

Many remote workers fail to effectively separate their work and home life. While both types of workers experience distractions, whether from coworkers or family members, remote workers are more likely to work longer hours.⁴¹ However, they may also lack the relief thatcomes from the physical separation of home and work life.⁴² Trust is often built through frequent interaction and familiarity.⁴³ However, too much contact from an employer may be construed as having excessive oversight and being overbearing. A common situation where this occurs is when an employer uses electronic monitoring software.⁴⁴ While there are many benefits that come with a remote working environment, it may also have the potential to agitate the cohesiveness between an attorney and their colleagues.

B. Method

A similar survey to the one administered to clients was also given to three members of the office staff. This survey asked staff members to rate their level of trust they had that the attorney would complete their work both in and outside the office, how often they communicated with the remote attorney and by what means, how communicating remotely influenced their collaboration, as well as any technical difficulties they experienced. The attorney who we worked with communicated with the same staff members regardless of whether the attorney was physically present in the office or communicating remotely. Previously, the attorney and his staff primarily communicated in person, through phone, and through email. For this study, video conferencing was added to the modes of communication used.

C. Results

All staff members preferred using phone calls when communicating with the attorney when he was outside the office. Two of the staff members reported that communicating remotely did not influence their ability to collaborate with the attorney effectively while one member reported that communicating remotely actually improved their ability to work effectively. Additionally, the level of trust staff members had that the attorney would timely complete their work was the same regardless of whether the attorney was working at the office or remotely. No staff members experienced any difficulties while communicating remotely and did not have any concern related to using remote technology in a legal office.

Ethical Consideration

The same ethical considerations apply to remote offices as those that apply to physical offices.⁴⁵ Attorneys are required to use reasonable care when protecting the confidentiality of their clients regardless of their methods of communication.⁴⁶ With this in mind, in order to protect client files that are stored, online encryption software would need to be utilized. Additionally, steps would have to be taken to ensure that various forms of remote communication are used securely, keeping in mind the caveats of confidentiality.⁴⁷ Attorneys must be conscious of the attorney-client privilege and should take precautions to ensure that exchanges with their client are secure.

Benefits

Regardless of how often attorneys use remote technologies, many benefits can be derived from doing so. Small firms or solo practitioners who utilize remote technologies can work from home offices and save the overhead cost of renting office space. Also, a larger pool of clients is available, particularly those in secluded areas who would have found it difficult to reach a qualified attorney. Using remote technologies to communicate also reduces travel time and costs associated with commuting. Additionally, remote communication can help non-native English speakers or foreign citizens navigate the American legal system by giving them access to attorneys who speak their native language or who are familiar with the client’s cultural background. Attorneys who are more experienced in handling cases involving foreign participants can be reached more easily. For example, in deportation cases immigrants have a right to an attorney.⁴⁸ However, the government is not required to fund this representation.⁴⁹ As a result, half of those immigrants facing deportation do so without the aid of an attorney.⁵⁰ Using remote technologies can give these people easier access to pro bono attorneys willing to help them who otherwise would have been limited by geographic constraints.

Conclusion

Research suggests that attorneys can communicate effectively with their clients and other staff members while working remotely, demonstrating that remote technologies have a place in the transactional, criminal, and civil realms of legal practice. The present study suggests that even while communicating remotely, attorneys can develop rapport and trust with their clients and staff. With remote technology, clients and attorneys gain the efficiency and safety of not having to meet at a physical office and clients may gain the additional benefit of having access to an attorney who can better meet their needs than one located nearby. Further, using remote communication gives attorneys access to clients in rural areas and can also reduce overhead costs of running an office as well as travel expenses. In the current era, it is easier than ever for firms of all sizes to take advantage of remote communication technologies. With the precautions merited by COVID-19, legal offices have been forced to modernize at an unprecedented rate. However, attorneys must realize that for this technology to be utilized in the legal setting, extra precautions have to be taken to ensure that confidential client information remains secure. With this concern in mind, incorporating remote technologies can bring immense benefits to the modern legal office.

Kelsey Ruszkowski is an associate with Gibson, McAskill & Crosby in Buffalo. Her practice focuses on asbestos and toxic tort defense. She is a former fellow of William & Mary’s Center for Legal and Court Technology, an affiliate of the National Center for State Courts. She can be reached at [email protected].

Samuel Blanton is an associate attorney with Tune, Entrekin & White in Nashville, Tenn. He enjoys a diverse practice and works in the areas of copyright, trademark, eminent domain, real estate, and civil litigation. Prior to beginning to practice, he served as a fellow with the Center for Legal and Court Technology. He can be reached at [email protected].

This research was completed at the Center for Legal & Court Technology. The authors would like to express their gratitude to the Cyberjustice Laboratory of the Université de Montréal for providing a grant to support this research.

[1] Jeff Koyen, Business Meetings: The Case for Face-to-Face Forbes Insights (2009), images.forbes.com/forbesinsights/StudyPDFs/Business_Meetings_FaceToFace.pdf.

[2] Id.

[3] Joshua Poje, Virtual Law Practice, ABA Tᴇᴄʜʀᴇᴘᴏʀᴛ 2014 (2014), http://www.americanbar.org/publications/techreport/2014/virtual-law-practice.html.

[4] Susan Sprecher, Initial Interactions Online-Text, Online-Audio, Online-Video, or Face-to-Face: Effects of Modality on Liking, Closeness, and Other Interpersonal Outcomes, 31 Cᴏᴍᴘᴜᴛᴇʀꜱ ɪɴ Hᴜᴍᴀɴ Bᴇʜᴀᴠɪᴏʀ 190–197 (2014).

[5] Id. at 194.

[6] Id. at 193 (Scores ranged from one, meaning “not at all”, to seven, meaning “a great deal”).

[7] Id. at 193.

[8] Susan Sprecher, Initial Interactions Online-Text, Online-Audio, Online Video, or Face-to-Face: Effects of Modality on Liking, Closeness, and Other Interpersonal Outcomes, 31 Cᴏᴍᴘᴜᴛᴇʀꜱ ɪɴ Hᴜᴍᴀɴ Bᴇʜᴀᴠɪᴏʀ 190–197 (2014).

[9] Id. at 195.

[10] Id.

[11] Id. at 193.

[12] Id. at 196.

[13] Eric T Bellone, Private Attorney- Client Communications and the Effect of Videoconferencing in the Courtroom, 8 J. ᴏꜰ Iɴᴛ’ʟ Cᴏᴍᴍᴇʀᴄɪᴀʟ L. & Tᴇᴄʜ. 24, 33 (2013), http://www.jiclt.com/index.php/jiclt/article/viewFile/176/173.

[14]Id.

[15]Id.

[16] Cameron Teoh et. al., Investigating Factors Influencing Trust in Video-Mediated Communication, 312, 318 (2010), http://portal.acm.org/dl.cfm.

[17]Id.

[18] Daniel R Stubbings et al., Comparing In-Person to Videoconference-Based Cognitive Behavioral Therapy for Mood and Anxiety Disorders: Randomized Controlled Trial, 15 J. ᴏꜰ Mᴇᴅ. Iɴᴛᴇʀɴᴇᴛ Rᴇꜱᴇᴀʀᴄʜ (2013).

[19] Id.

[20] Id.

[21] Id.

[22] Brendan R. McDonald et al., Attorney–Client Working Relationship: Videoconferencing Versus In-Person Consultations, 22 Pꜱʏᴄʜᴏʟ. Pᴜʙ. Pᴏʟ’ʏ & L. 200, 201 (2016).

[23] Gerald G Ashdown & Michael A Menzel, The Convenience of the Guillotine?: Video Proceedings in Federal Prosecutions, 80 Denv. U. L. Rev. 63 (2002) (discussing the use of video conferencing in federal and state prosecutions).

[24] Eric T Bellone, Private Attorney- Client Communications and the Effect of Videoconferencing in the Courtroom , 8 J. of Int’l Commercial L. & Tech. 24, 29 (2013).

[25] Id.

[26] Anne Poulin, Criminal Justice and Videoconferencing Technology: The Remote Defendant, 78 Tul. L. Rev. 1089, 1167, n. 155 (2004).

[27]Id.

[28] McDonald, supra note 22, at 206.

[29]Id. at 205–06.

[30]Id. at 206.

[31] Poulin, supra note 26, at 1126.

[32] For a short overview of the different forms of remote communication used in the legal field, see Wells H Anderson & Seth G. Rowland, How to Choose the Right Tools for Any Client Communication, 31 GP Sᴏʟᴏ (2014), https://www.americanbar.org/publications/gp_solo/2014/may_june/how_choose_right_tools_any_client_communication.html.

[33] Cameron Teoh et. al., Investigating Factors Influencing Trust in Video-Mediated Communication, 312, 314 (2010), http://portal.acm.org/dl.cfm.

[34] Difficulties may include such common occurrences as buffering, lag time between speech and lip movement, weak connections, etc. Note, however, that the use of in house HD video conferencing solutions, instead of a basic set-up like the one used here, should resolve these concerns.

[35] Paula Schaefer, Technology’s Triple Threat to the Attorney-Client Privilege, J. ᴏꜰ ᴛʜᴇ Pʀᴏꜰ’l. Lᴀw. 171 (2013), http://www.abanet.org/cpr/pubs/symposium.html.

[36] Model Rules of Prof’l Conduct R. 1.6(c) (2016); see id. at Comment [18], [19].

[37] Potential limitations could have included the client’s operating system, strength of internet connection, etc.

[38] Christine A. Grant, Louise M. Wallace & Peter C. Spurgeon, An Exploration of the Psychological Factors Affecting Remote E-Worker’s Job Effectiveness, Well-Being and Work-Life Balance 35 Eᴍᴘʟᴏʏᴇᴇ Rᴇʟᴀᴛɪᴏɴꜱ 527, 535 (2013).

[39] Remote Workers Log More Hours and Are Slightly More Engaged, Gᴀʟʟᴜᴘ Nᴇᴡꜱ, (July 12, 2013),

http://www.gallup.com/opinion/gallup/170669/remote-workers-log-hours-slightly-engaged.aspx.

[40] Niraj Chokshi, Out of the Office: More People Are Working Remotely, Survey Finds, N.Y. Tɪᴍᴇꜱ (Feb. 15, 2017),

https://www.nytimes.com/2017/02/15/us/remote-workers-work-from-home.html.

[41] Gᴀʟʟᴜᴘ Nᴇᴡꜱ, supra note 39.

[42] Id. (revealing how remote workers feel more connected to their company and log more hours).

[43] L.Y.-Y. Kwan et al. Mere Exposure Affects Perceived Descriptive Norms: Implications for Personal Preferences and Trust, 129 Oʀɢ. Bᴇʜᴀᴠɪᴏʀ & Hᴜᴍ. Dᴇᴄɪꜱɪᴏɴ Pʀᴏᴄᴇꜱꜱᴇꜱ 48, 53 (2015), http://ac.els-cdn.com/S0749597814001174/1-s2.0-S0749597814001174-main.pdf?_tid=77af2188-98c1-11e7-8b4e-00000aab0f6c&acdnat=1505334416_2442004ad967cc147975a91ae9be52f3 (“Individuals might have greater trust in more well-known employees.”).

[44] Nick Nykodym & Robert Taylor, Communication: A Vital Tool to Combat Cyber Crime, 2 J. ᴏꜰ Iɴᴛ’ʟ Cᴏᴍ. L. & Tᴇᴄʜ. 185, 186–87 (2007).

[45] Seth L Laver & Jessica L Wuebker, Home Is Where the Office Is- Ethical Implications of the Virtual Office, ABA Sᴇᴄᴛɪᴏɴ ᴏꜰ Lɪᴛɪɢᴀᴛɪᴏɴ (Nov. 2, 2014), https://apps.americanbar.org/litigation/committees/professional/articles/spring2014-0314-home-is-where-office-is-implications-virtual-office.html.

[46] Id.

[47] See generally, Michael D. Fielding, You Need To Know This: Bankruptcy and Attorney-Client Privilege in the Electronic Age, 25 Aᴍ. Bᴀɴᴋʀ. Iɴꜱᴛ. J. 62 (Dec. 2006/ Jan. 2007) (discussing inadvertent waivers of the attorney-client privilege through email).

[48] Lucas Guttentag & Ahilan Arulanantham, Extending the Promise of Gideon: Immigration, Deportation, and the Right to Counsel, 39 Hᴜᴍ. Rᴛꜱ. Mᴀɢᴀᴢɪɴᴇ, 2013, http://www.americanbar.org/publications/human_rights_magazine_home/2013_vol_39/vol_30_no_4_gideon/extending_the_promise_of_gideon.html.

[49] Id.

[50] Id.