Some provisions for limited in-person participation using existing Disciplinary Board or Court space have been included, to be decided at the discretion of the Presiding Hearing Committee Member and including restrictions such as social distancing and mask-wearing. However, all participants can connect with each other via secure video conferencing if the decision not to appear in person is made and supported by each stakeholder.
There are specific protocols for each type of proceeding: pre-hearing conference, discipline/reinstatement hearing, motion hearing, oral argument, and private/public reprimand. The guidelines are sensible, science-based and aimed to minimize risk to all participants. They are also very detailed, and include provisions for virtual file-sharing of documents too large to be emailed, instructions for an initial test session as well as potential technical difficulties, utilization of a “virtual lobby” for witnesses and to protect confidential communication, and even a suggestion to “dress in a soft solid color. If wearing a tie, choose a solid color.”
One of the most significant issues is the access of the public to disciplinary proceedings. Pre-hearing conferences and motion hearings are not to be recorded or made available to the public, private reprimands will remain so, and in all cases, the official record will be the transcript created by the court reporter (excepting reprimands, in which case the official record will be “the written reprimand as generated by the Disciplinary Board”). However, if a remote discipline or reinstatement hearing, oral argument, or reprimand is “a public proceeding, it will be streamed on YouTube Live for the public to view.” In fact, the first of these live-streamed public reprimands, including that of former Justice Cynthia Baldwin, aired on July 22nd. Read about it here.
Use of live-streaming is uncharted territory for the Disciplinary Board. YouTube is a far more public arena than any physical space, and by design, all content is easily shareable across social media platforms. This creates the potential for many more members of the public to attend a Disciplinary Hearing or Public Reprimand than ever before. Is that a positive development, which shines a beneficial light on the internal legal discipline system? Or is it unnecessary to create space for such a large virtual audience, inviting shame on our attorneys and mockery of the legal system? And once Covid is over, will the temporary practice of live-streaming publicly available discipline be permanently established? I invite your comments and thoughts below!