Professional Standards When Appearing in Court Remotely Policy

This policy sets out guidelines for solicitors when appearing in court remotely.

One response of the various courts and tribunals to the COVID-19 pandemic, was to allow solicitors to more regularly appear remotely via the use of visual and audio technology. Many practitioners welcomed this change.

However, it is important to remember that the highest standards of professionalism and the requirements of the Australian Solicitors Conduct Rules (ASCR) apply equally to those hearings conducted using technology as to those hearings where the parties attend in person. The overriding principle for solicitors is that the same professional expectations and ethical duties apply to remote appearances as apply to in-person appearances.

Whilst there has more recently been a return to the general requirement for attendances in person for most hearings, this document provides guidance to solicitors for appearing in court remotely where:

Practice Notes permit a solicitor to appear by telephone or video-link; or
leave has been granted to a solicitor to appear by telephone or video-link.

This policy is intended to assist our solicitors to understand and comply with their duty.

All employees employed by Lawpoint must comply with this policy at all times during their employment when appearing in court remotely.

1. Ethical principles

1.1

The ASCR apply to all remote appearances and not just to in court appearances.

1.2

Employees are to ensure compliance with the ASCR at all times including:

the paramount duty to the court and the administration of justice;
being honest and courteous in all dealings in the course of legal practice;
delivering legal services competently, diligently and as promptly as reasonably possible;
avoiding any compromise to their integrity and professional independence;
maintaining client confidentiality;
dealing with the court, in the presence of any of the parties or solicitors, on terms of informal personal familiarity which may reasonably give the appearance that the solicitor has special favour with the court.

2. Applicable Practice Notes

2.1

All employees who appear before courts must familiarise themselves and comply with all relevant Practice Notes in each jurisdiction. These include:

Practice Note SC Gen 12 Supreme Court – online court;
Practice Note DC (Civil) No. 1 B Online Court and the General List in Sydney;
Practice Note DC (Civil) No. 1C Attendance at Civil Proceedings by Audio Visual Link (AVL);
Local Court of New South Wales Practice Note Civ; and
FCFCOA Practitioner and Litigant Guide to Electronic Hearings.

3. Paramount Duty to the Court

3.1

A solicitor’s duty to the court and to the administration of justice is paramount, regardless of whether the solicitor is appearing in person in the courtroom or appearing remotely. There is no relaxation of this paramount duty, simply because the method of appearance before the court has changed.

3.2

Compliance with this duty, when appearing in court remotely, would include that the solicitor:

ensures that there is no erosion of the perception of the authority of the Court, just because the method of appearance has changed;
is courteous and respectful to court staff who assist in facilitating the remote appearance;
is always immediately available during any and all timeframes required by the court for the remote appearance;
ensures that administration staff who may receive calls from the court are, when possible, made aware in advance of the call and instructed as to any formalities required by the court when taking the call;
is always dressed and groomed appropriately;
is familiar with any relevant Practice Direction;
is familiar with how to use and operate competently the court’s preferred systems of audio or audio-visual technology for remote appearances;
refrains from using inappropriate filters and backgrounds graphics;
is punctual and well prepared.

4. Courtesy and Maintenance of Integrity

4.1

All employees must be courteous in all dealings and must deliver legal services competently and avoid any compromise to their integrity.

4.2

Compliance with this duty, when appearing in court remotely, would include ensuring that the solicitor:

is courteous to the Court and to colleagues and does not revert to using informal or discourteous language;
makes allowances for the limits inherent in the technology, by taking greater care to speak clearly and audibly, and to take greater care to avoid interrupting the Court or other parties when speaking;
remains on mute when not speaking;
does not allow background noise or background activity to interfere with the Court process;
does not appear to take the matter any less seriously just because the solicitor is not appearing in person or is on the telephone and cannot be seen;
does not have other applications or devices unnecessary for the appearance operating while appearing remotely;
does not undertake other tasks simultaneously (e.g. receiving or sending text messages, having a discussion with a colleague with the microphone muted) with appearing remotely; in addition to detracting from a practitioner’s performance as an advocate, the distraction will be obvious to the court and (rightly) taken as discourtesy;
takes steps to eliminate distractions at the place from which they are appearing; and
if clients or witnesses will also be involved in the appearance, explain the process to them and ensure that they are also familiar with the formality and technology necessary to appear.

6. Preparation

6.1

Given the limitations of remote conferencing technology, it is likely that written material will carry more weight than it does in standard hearings. Solicitors should ensure that material filed with the court for use in remote hearings is concise, clear and states the case without the need for expansion via oral submissions. The temptation to include too much should be resisted however; remote hearings are not hearings on the papers.

6.2

During a remote hearing, it may be necessary to access more than one document at a time, while maintaining contact with the courtroom; it is essential that these documents are readily accessible, and employees appearing remotely should ensure that this is the case. If possible, the preparation of a fully electronic file, accessible on a separate device or screen, is recommended.

6.3

Liaising with your opponent beforehand can make remote hearings more efficient, allowing you to, for example:

agree on a reference system/key for documents to enable them to be found easily by all parties without the need for screen-sharing or holding documents up to the camera;
agree on a method of objecting/interjecting (subject to the court’s approval) as standard verbal methods may not translate well to video technology which can exhibit delayed sound or images;
agree on a method of sharing documents that become relevant but are not in the filed bundle or otherwise before the court.

7. Punctuality

7.1

It is important that all employees remain punctual when appearing before the court by remote means.

7.2

Compliance with this obligation, when appearing in court remotely, would include that the solicitor:

is always immediately available during any and all timeframes required by the court for the remote appearance;
is familiar with how to use and operate competently the court’s preferred systems of audio or audio-visual technology for remote appearances;
does not schedule other activities concurrently with the remote appearance, or so closely proceeding/following it that inadequate time is allowed to accommodate delays experienced by the court in starting, or the matter running over time;
has notified their administrative staff of the time of the hearing and the need for their line to be free at that time.

7.3

Take steps to minimise the risk and impact of technological failure or defect at your end. These include:

liaise with the court to ensure you know how to connect with it, checking what programme you should be using and what the dial in arrangements are.
invest in and maintain effective devices and connection capacity.
familiarise yourself with the technology you will be using. Practise using it.
find your mute button. Practise using it.
ensure your camera and speaker are working to ensure you can hear and see what is said in the courtroom (and be heard and seen).
do a test run of your connection with the court.
establish your connection early enough to give yourself the time to try and solve technical problems and have the connection in place by the time the court calls your matter.
plan for the event of technological failure. Ascertain what the court wants you to do if the line or link fails and needs to be re-established. Make sure you have means of contacting the court alternative to the device you intend to use for your appearance. Consider how you may access fallback remote appearance options if the one you plan to use fails.

8. Advocacy

8.1

It is important that all employees still only make appropriate and competent submissions when appearing before the court by remote means.

8.2

It is of course not appropriate for an employee appearing remotely to make a submission that they would not (or should not) make in person.

8.3

The substance of what you say is especially important during remote appearances Because of the distractions and communication limitations of remote advocacy, advancing structured, concise and clear submissions which go to the real issues is especially important.

9. Confidentiality

9.1

Employees must not disclose any information which is confidential to a client and acquired by the employee during their employment.

9.2

Compliance with this duty, when appearing in court remotely, would include that all employees:

ensure that no other client files can be seen in the background of any visual appearance;
ensure that the court appearance cannot be overheard by other people non-employees of Lawpoint in the office, home or other environment;
ensure that no other conversations can be overhead by the court;
do not record the court appearance;
ensure that you only use computers for remote appearances which have relevant cyber-security measures in place to prevent breaches of confidentiality.

10. Facilities

10.1

Unless in case of emergency circumstances, remote appearances should never occur in a public place. Similarly, do not show disrespect to the court by appearing from a motor vehicle or other inappropriate place.

10.2

Remote appearances should only be conducted from the Lawpoint office or from an employee’s home, where the employee is authorised to work from home.

10.3

Where the remote appearance occurs other than from the Lawpoint office, employees should ensure that the facilities available at the remote location are sufficient to facilitate the appearance, including:

internet access of sufficient speed, clarity and reliability to support the appearance;
access to enough screens, cameras, headsets and other devices to accommodate the demands of the appearance;
access to break-out rooms and secure discussion spaces should they be necessary;
ensure devices are fully charged or capable of being connected.

11. Non-compliance with Policy

11.1

Lawpoint places great pride in its integrity and reputation. Professionalism and adherence to professional and ethical obligations are cornerstones of our business. A breach of this policy is inconsistent with the with Lawpoint’s core values.

11.2

Accordingly, a breach of this policy may result in disciplinary action. Depending on the seriousness of the breach, disciplinary action made lead to termination of employment with Lawpoint.