One of the most important parts of a lawyer's job is keeping client information safe.
COVID-19 and the ensuing stay-at-home orders have upended how lawyers and judges work. Here are three perspectives on how legal professionals have adjusted their client security protocols.
1. The Courts
By: Judge Bill Koch
Bob Dylan’s song “The Times, They Are A-Changin’” was written as a commentary on the civil rights movement and the changes rocking the world at the time of my birth in 1963. Dylan’s song was about a different time and a different place. But, the “sense” of the song resonates right now, in more ways than one. 
I wrote this discussion about how COVID-19 has changed life in the courts, and then had to rewrite it following the announcement by the Chief Justice and the Judicial Council of a series of new mandates for our courts: beginning November 30, no trials would be held until February 1 and all matters would be handled remotely, except for rare exceptions. Even before this most recent move, Hennepin County—through the great work of the Hennepin County Sheriff’s Office and all criminal justice partners—had largely avoided or suppressed the scourge of COVID-19 in the jail through careful planning and reduction of the pretrial jail populations.
To say we are in a state of constant flux would be an understatement. Thankfully, we are a creative and resilient court. Our IT and court staff are nimble and proactive. And our justice partners are matching that ingenuity. Starting last March, when the coronavirus was truly novel, we implemented changes in our practices. One of the most notable is the use of Zoom for a vast variety of hearings. It is beyond the scope of this short piece to cover all the changes. But this chart (above) helps illustrate where we have been. And, given the most recent spike in the number of coronavirus cases, an indication of where we will be going.
Today, most judges have implemented a “permanent” Zoom link for their virtual courtrooms. All chambers have been trained on best practices for remote hearings. Except for limited situations requiring in-person appearances, parties have been strongly encouraged to appear remotely via Zoom. It is easy. It is certainly easier than traveling to the courthouse, oftentimes having to take off work, or find child care, or both. It is quicker, since the parties need only be “present” for their hearing. And it is safer since it greatly reduces the number of people coming to the courthouse, lowering the chance of transmission of the virus. Most people thoroughly appreciate the opportunity to participate in this manner.
But there are inherent challenges. If a defendant does not have a smartphone, tablet, laptop, or computer, Zoom cannot be used for visual participation. The introduction of documents for hearings can be a bit challenging and requires advance coordination. Our Court Reporting Unit, which can normally cover four courtrooms from a single remote computer, cannot cover as many simultaneous court proceedings. On a more pedestrian level, the lack of in-person hearings may put extra pressure on an already overworked public defender system to connect with clients away from the courtroom. Because the Sheriff’s Department has limited staff available to move defendants into limited conference spaces at the jail for remote hearings, precious time can only accommodate limited break-out-room conversations for attorneys to have private conversations with their clients.
Some of the changes brought on by COVID-19 will result in evolutionary change to the way we deliver justice in Hennepin County. Some will fade with the virus. Our court will want to work with all stakeholders to identify the aspects of our current approach that we should keep and those we should put back on the shelf for the next, inevitable, statewide challenge. To that end, please keep track of what works and what does not. And, when we ask for input, please be ready to share . . . remotely, most likely.
2. Criminal Defense Law
by Anthony Bushnell
My practice is almost entirely criminal defense and juvenile delinquency law, so confidentiality is a particularly high priority. I have generally been working from a home office where I can be on a different level of the house and have a door closed for privacy. Many of us have children home all day now because of distance learning, and it’s easy to forget how easily they can overhear things. I have to remind myself I’m not in a business office and need to set some new boundaries with my kids during the workday. Besides privacy, having a dedicated space with a closed door also allows me to have client files spread out for work.
Remote hearings are more convenient for lawyers, but not for all clients. In criminal law, we find that some clients feel very uncomfortable and unprepared to connect to a hearing by video. The remote hearing also makes them feel alone and nervous, since normally in court the lawyer would be right next to them and handle everything. I have a new set of instructions I send to clients a week or two before a remote hearing to prepare them for what to expect, such as not being able to talk to me privately during the hearing. I encourage them to text me with questions during the hearing or while we’re in the waiting room. This preparation helps me assess how comfortable they are doing a remote hearing from a separate location.
I still need to meet some clients in person to collect payments or go over documents together at our firm’s conference room. This means more planning ahead with clients, since I have to make sure the shared conference room is available. Clients can’t just call on the way and ask to drop in. I also go over a COVID-19 exposure-and-symptoms checklist with clients before they come to our office. I need to remember to notify clients that I am generally not in the office and they should not show up without calling me first. Some office buildings no longer routinely unlock their outside doors, so it’s wise to check with building management to make sure the building will be open. Otherwise a client may show up just to drop something off and find the outer doors locked.
Legal trouble is intimidating enough for clients already, and every unexpected complication can intensify the anxiety and stress. Having a plan and procedures and walking them through everything is another way attorneys help bring them peace of mind.
3. Family Law
By Kristy A Mara
The COVID-19 pandemic has created stress and anxiety for many Minnesotans. I practice at a boutique family law firm, and I have seen firsthand the impact of the pandemic. For many people, the pandemic has caused marital issues that result in divorce. Since April 2020, our firm has been busier than ever before. The last data statistics show a 30 percent increase in divorce filings. Post-divorce issues such as child custody, parenting time, and visitation have also increased dramatically.
Due to COVID-19 we’ve refined our office practices as follows:
1) Documents, e-mail, and billing are cloud-based and secure.
2) Stricter confidentiality safeguards have been instituted with our lawyers and staff while working remotely. Our office online security protocol has been modified to include multifactor authentication and encrypted Wi-Fi connections.
3) Client consultations/meetings, mediations, and court hearings are all being done via Zoom.
4) Our firm invested in advanced technology to meet the virtual needs of our family law practice.
5) We use online notaries.
6) We’ve all become Zoom experts.
The court system is doing its best to adapt to the pandemic by using Zoom technology to handle conferences, hearings, and even trials. With the dramatic increase in case volume, clients should expect to wait longer than usual for hearings and trials. In-person emergency hearings are available, but limited to specific issues, including domestic abuse.
We are seeing more financial issues in our cases due to reductions in income, layoffs, and reduced working hours. We are encountering more business valuation issues due to the volatility of the stock market and clients' worries about the short- and long-term impact of the pandemic on their businesses.
Our biggest change is that everyone in our office must use Zoom and have the equipment to appear by video. We’ve modified our office online security protocol. During video conferences, we ask clients if anyone else is present or recording the session. During Zoom trials, we ask more questions of witnesses regarding their location, anything they are looking at that we cannot see on the screen, and if anyone else in their location may hear or see the video conference or otherwise coach or assist the witness. We protect against text-message coaching during depositions/testimony by asking witnesses if their cell phone is within reach and instruct them not to text during their testimony or during breaks. We prepare our clients differently when using Zoom versus in-person testimony. We discuss nonverbal cues, facial expressions, camera lighting, the use of breakout rooms, and how to mute their audio during a Zoom session. We’ve learned how to overcome many different technical issues over the past eight months.
We can’t predict what the future holds once our communities, law offices, and the courts return to “normal” or what we may come to know as the “new normal.” Some of the virtual transformations may not be temporary and video conferencing may be the new normal. The main take away is to be patient with everyone as we learn to navigate these new ways.
Hon. Bill Koch
Bill Koch is a Hennepin County Judge. He was appointed in 2007. He has been fortunate to have had wonderful law clerks throughout the years, including several who have served on the Hennepin Lawyer Committee. Along with his colleagues in the Fourth District and across the state, Judge Koch is working to ensure the fair administration of the law in these unsettled times.
Anthony Bushnell
anthony@bushnellbest.com
Mr. Bushnell has practiced criminal law in the Twin Cities and greater metro for 15 years, serving as both a part-time city prosecutor and a private defense attorney. He practices law with Bushnell & Best where the firm also handles family law and juvenile protection matters. He served as the chair of the Criminal Law Section of the MSBA for 2019-2020 and previously served as the Chair of the Solo and Small Firm Section.
Kristy A. Mara
kristy@honsalaw.com
Ms. Mara has been practicing family law for 23 years and is a partner at Honsa Mara Landry. She specializes in complex cases. Mara has been voted as a “Super Lawyer”, voted as the TOP 100 Attorneys and Top 50 Women Attorneys. She is also a Fellow in the American Academy of Matrimonial Lawyers.