Technology - CT January | February 2021 LAWYER - An Update from the Judicial Branch - Connecticut Bar Association
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CT LAWYER
Volume 31 | Number 3 January | February 2021
Technology
An Update from
the Judicial Branch
Legal Ethics in
an Increasingly
Online World
Contact Tracing and
US Privacy Law
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President, Amy Lin Meyerson
CT LAWYER Volume 31 | Number 3 | January/February 2021
President-elect, Cecil J. Thomas
Vice President, Daniel J. Horgan
Treasurer, Margaret I. Castinado FEATURES
Secretary, Erin O’Neil-Baker
Assistant Secretary-Treasurer,
12 Update to The Lawyers’ Principles of Professionalism
Amanda G. Schreiber
Immediate Past President, 14 Connecticut Judicial Branch Responds to
Ndidi N. Moses COVID-19 Challenges By Judge Patrick L. Carroll III
ADVISORY COMMITTEE
Jeffrey A. Zyjeski (Chair), Myles H. Alderman, 18 Technology and Legal Ethics:
Jr., Frank S. Berall, Thomas Chapman, Dean Defining Competence in an Incresingly Online World
M. Cordiano, Jeffrey C. Dannenberg, Proloy K.
By Brendon Levesque and Michael Taylor
Das, Brian J. Donnell, Steven J. Errante, Emily
Gianquinto, Theodore W. Heiser, Noah Jon
Kores, Kyle LaBuff, Regen O’Malley, Charles
Ray, Daniel Roberts, Fred D. Sette, Jeffrey
22 COVID-19 Technology and Privacy: Contact Tracing
Sklarz, Bolesh J. Skutnik, Elizabeth C. Yen Technology and its Implications for U.S. Privacy Law
CONNECTICUT LAWYER STAFF
By Dayle A. Duran and Dena M. Castricone
Executive Director: Keith J. Soressi,
ksoressi@ctbar.org 27 What Did Lincoln Read?
Publications Manager: Alysha Adamo, By Judge Henry S. Cohn
aadamo@ctbar.org
Design/Production: Susan Lampe-Wilson
Advertising: advertise@ctbar.org COLUMNS
Copyright 2021 by the Connecticut Bar Associa- 4 PRESIDENT’S MESSAGE
tion. All rights reserved. The copying, duplication, Don’t Let Perfect Be the Enemy of the Good By Amy Lin Meyerson
transferring, reproducing, reusing, or reprinting of
the CT Lawyer is strictly prohibited without per-
mission. Publication of advertising does not imply
30 DIVERSITY, EQUITY, & INCLUSION
endorsement of products, services, or statements Measuring the Intangible: The Necessity of Assessing Diversity,
made concerning them. All advertising copy is Equity, and Inclusion By Cecil J. Thomas and Karen DeMeola
subject to approval. The editor reserves the right
to reject advertising. The goal of the CT Lawyer is
to provide a forum for the free expression of ideas.
32 TIME TO GO PRO BONO
The opinions and positions stated in signed arti- The Devastating Impact of Evictions on Connecticut Families
cles are those of the authors and not those of the By Cecil J. Thomas
Connecticut Bar Association. The Connecticut Bar
Association welcomes the submission of articles by
its members. For editorial guidelines, please e-mail
34 SUPREME DELIBERATIONS
editor@ctbar.org. Defining the Field Makes for Easy Work
Manuscripts accepted for publication become the By Charles D. Ray and Matthew A. Weiner
property of the Connecticut Bar Association. No
compensation is paid for articles published. 38 YOUNG LAWYERS
The CT Lawyer (ISSN 10572384) is published six It’s Not Personal, It’s Business: How Your Well-Being Could
times per year by the Connecticut Bar Association, Impact Your Practice By Cindy M. Cieslak
30 Bank Street, New Britain, CT 06051-2276. CBA
membership includes a subscription. Periodicals
postage paid at New Britain, CT, and additional
offices.
DEPARTMENTS SEND US YOUR IDEAS
Contact editor@ctbar.org.
POSTMASTER: Please send address changes to CT 6 Education Calendar
Lawyer, 30 Bank St, New Britain, CT 06051-2276. 8 News & Events
Cover Credit: alexl/istock/Getty
Design/Production services provided by Belvoir Me- 36 Court Decisions ImagePlus
dia Group, 535 Connecticut Avenue, Norwalk, CT
06854. 203-857-3100. www.belvoir.comPRESIDENT’S MESSAGE
Don’t Let Perfect Be
the Enemy of the Good
By AMY LIN MEYERSON
Amy Lin Meyerson is the
SECTION 1. Be it enacted by the Senate and
2020–2021 President of the
House of Representatives of the United States
Connecticut Bar Association.
of America in Congress assembled, That the
She is a sole practitioner
supreme court of the United States shall con-
in Weston, Connecticut,
sist of a chief justice and five associate jus-
practicing business and
tices,1 any four of whom shall be a quorum,
general corporate law.
and shall hold annually at the seat of govern-
ment two sessions, the one commencing the
first Monday of February, and the other the
first Monday of August.
— Judiciary Act of 1789
M
y 13-year-old daughter and I On the morning of Tuesday, October 27, faithfully discharge the duties of the office
had the honor of participating 2020, in the Supreme Court Building’s on which I am about to enter. So help me
in a special Reading & Robes pro- East Conference Room, US Supreme Court God.”4
gram with US Supreme Court Justice So- Chief Justice John Roberts administered
nia Sotomayor hosted online by the Na- the judicial oath of office to Judge Amy At 48, Justice Barrett is not the youngest
tional Judicial College and NJC President Coney Barrett, formally swearing her in U.S. Supreme Court Justice. John Jay was
Benes Z. Aldana, the former chief trial as the 115th justice to serve on the US Su- the youngest at 44 years old when he took
judge of the US Coast Guard. Connecticut preme Court.3 The Judicial Oath, under 28 his oath of office in 1789. As a graduate of
was one of the 13 states that participat- U.S.C. § 453, reads: “I, _________, do sol- Notre Dame Law School, she is the only
ed. Appellate Judge Nina F. Elgo hosted emnly swear (or affirm) that I will admin- current justice who did not receive a law
our group of ten middle school students ister justice without respect to persons, degree from Harvard Law School or Yale
in collaboration with the Hartford Youth and do equal right to the poor and to the Law School.5
Scholars.2 rich, and that I will faithfully and impar-
tially discharge and perform all the duties Having clerked for Justice Antonin Sca-
Justice Sotomayor spoke to us from her incumbent upon me as _________ under lia during the 1998 Term, Justice Barrett
chambers at the Supreme Court via an the Constitution and laws of the United is one of the six current justices who
iPad. She was dressed not in a black robe States. So help me God.” US Supreme clerked for the Supreme Court. Justice
but in the same outfit we saw her wearing Court Justice Clarence Thomas swore in Stephen G. Breyer clerked for Justice Ar-
earlier that morning on TV during a me- Justice Barrett under a constitutional oath thur J. Goldberg during the 1964 Term.
morial for US Supreme Court Justice Ruth at the White House event on the evening Justice John G. Roberts, Jr. clerked for
Bader Ginsburg whose body was lying in of Monday, October 26, 2020. Under 5 Justice William H. Rehnquist during the
repose at the Supreme Court in Washing- U.S.C. § 3331, all federal employees, other 1980 Term. Justice Elena Kagan clerked
ton, DC. than the president, take the constitutional for Justice Thurgood Marshall during
oath: “I, _________, do solemnly swear (or the 1987 Term. Justice Neil M. Gorsuch
Justice Sotomayor told the students that affirm) that I will support and defend the clerked for then-retired Justice Byron R.
she asks herself two questions every Constitution of the United States against White and Justice Anthony M. Kennedy
night before she goes to sleep: Whom did all enemies, foreign and domestic; that I during the 1993 Term.6 Justice Brett M.
she help today and what new things did will bear true faith and allegiance to the Kavanaugh clerked for Justice Anthony
she learn today? We were inspired and same; that I take this obligation freely, M. Kennedy during the 1993 Term.
thought about what good we could do for without any mental reservation or pur-
our community. pose of evasion; and that I will well and On lifetime appointments of federal judg-
4 Connecticut Lawyer | ctbar.org January | February 2021es7 and the independence of the judiciary, our Judicial system. We continue to work continue the tradition! Self-nominations
US Supreme Court Chief Justice William collaboratively with the Branch to address are welcome. Leadership experience with
H. Rehnquist, in his 19th and final annu- the technology and personal health and other CBA committees, voluntary bar as-
al report assessing the state of the judicia- safety issues of our members and their sociations, or the bar’s sections is highly
ry, wrote: ``By guaranteeing judges life clients. desirable. Contact Carol DeJohn at (860)
tenure during good behavior, the Con- 612-2000 or cdejohn@ctbar.org with any
stitution tries to insulate judges from the The CBA also is committed to creating a questions about the process.
public pressures that may affect elected sustainable pipeline of students from high
officials. The Constitution protects judi- school to college, and, thereafter, to law The CBA leadership, staff, and volunteer
cial independence not to benefit judges, school and the practice of law through our members who are giving generously of
but to promote the rule of law: judges Pathways to Legal Careers.10 Our inaugu- their time and expertise are working full
are expected to administer the law fairly, ral class of LSAT Scholars is hard at work tilt to provide services to our members and
without regard to public reaction.’’8 preparing for their law school journey care for the health and vitality of our legal
and engaging with the Connecticut legal profession. Visit www.ctbar.org/members
There has been much speculation about community. Many thanks to Kaplan Part- for details about our member services and
what the addition of Justice Barrett to the ner Solutions and Updike Kelly & Spella- newly-added member benefits. If you
US Supreme Court will mean to our coun- cy PC for their contributions that enabled have an issue that needs to be addressed
try, democracy, and the rule of law. As the the CBA to launch this program. We look or if you have any suggestions on what
fifth woman to serve on the US Supreme forward to growing and ensuring the lon- more we can be doing, please let us know
Court, will Justice Barrett be mindful of gevity of this pipeline program with the at communications@ctbar.org.
those who came before her? These are support of the signatories to the Connecti-
questions we will answer together as cases cut Legal Community’s Diversity & Inclu- There is no doubt that these are uncertain,
before the US Supreme Court are decided. sion Pledge & Plan and others. and unprecedented times. Now is the time
when strong leadership and creative solu-
In testimony before the 2020 Connecticut Our 2020 LSAT Scholars: tions are more important than ever. The
Judicial Compensation Commission, I • Elizabeth Castro, University of Connecticut Bar Association will continue
noted that a fundamental principle of our Connecticut August 2020; Major: to strive to provide high-quality services
democracy is that the public is entitled to Political Science and do the good and right work for our
justice rendered by a qualified, indepen- • Natasha Claudio, Connecticut College members and our communities. With an
dent, fair, and impartial judiciary. US Su- Class of 2021; Major: English eye to perfection, join us as we endeavor
preme Court Chief Justice John Roberts • Maman Cooper, University of to get many things done imperfectly rath-
said in support of increasing judicial pay, Connecticut Class of 2017; Major: er than do nothing perfectly.
“I simply ask once again for a moment’s Political Science
reflection on how America would look in Stay safe and be well. n
• Christina Cruz, Connecticut College
the absence of a skilled and independent
Class of 2020; Major: Sociology and
Judiciary. Consider the critical role of our NOTES
Latin American Studies
courts in preserving individual liberty, 1. The Judiciary Act of 1869 fixed the number
promoting commerce, protecting proper- • Frankie De Leon, Wesleyan University
of Justices at nine and no subsequent change
ty, and ensuring that every person who Class of 2020; Major: American Studies to the number of Justices has occurred. www.
appears in an American court can expect • Debaditta Ghosh, Wesleyan University supremecourt.gov/about/faq_general.aspx
Class of 2020; Major: Government 2. w
ww.judges.org/news-and-info/su-
fair and impartial justice.”9
preme-courts-sotomayor-inspires-at-spe-
• Fernecia Smith, University of cial-online-reading-robes
The disparity in compensation between Bridgeport Class of 2020; Major: 3. w
ww.cnn.com/2020/10/27/politics/justice-
public service and private law practice Political Science amy-coney-barrett-sworn-in-supreme-court/
is well documented. Our judges literally index.html
pay a price when they choose a path of We are excited to begin preparations for 4. w
ww.supremecourt.gov/about/oath/oath-
sofoffice.aspx
servant leadership. Judicial compensation the upcoming terms of Cecil J. Thomas as
5. C
hief Justice John G. Roberts, Jr. - Har-
that is fair and appropriate enables our CBA president and Daniel J. Horgan as vard (J.D.); Justice Clarence Thomas - Yale
state to attract and retain qualified, expe- CBA president-elect that begin on July 1, (J.D.); Justice Stephen G. Breyer - Harvard
rienced, and diverse lawyers drawn from 2021. Our CBA officers and section and (LL.B); Justice Samuel A. Alito, Jr. - Yale
(J.D.); Justice Sonia Sotomayor - Yale
every segment of the legal profession to a committee members who lead with vi-
(J.D.); Justice Elena Kagan - Harvard
career in judicial service. Our judges are sion, empathy, and integrity have contrib- (J.D.); Justice Neil M. Gorsuch - Harvard
the backbone of a fair, effective, and effi- uted to the success of the Connecticut Bar (J.D.); Justice Brett M. Kavanaugh - Yale
cient judicial system. The Connecticut Bar Association as the preeminent organiza- (J.D.); Justice Amy Coney Barrett - Notre
Dame (J.D.)
Association reiterates its commitment to tion of attorneys and legal professionals in
supporting the needs of the courts and Connecticut. Volunteer to serve with us to Continued on page 40
January | February 2021 ctbar.org | Connecticut Lawyer 5Upcoming
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January | February 2021 Location ctbar.org | Connecticut Lawyer 7CONNECTICUT BAR ASSOCIATION
News&Events
CBA Hosts Fifth Annual Diversity & Inclusion Summit
On Wednesday, October 21, more than 125 people attend- which focused on the organizational dynamics that create and
ed the CBA’s fifth annual Diversity & Inclusion Summit: The hinder diversity and inclusion efforts. Aleria used Zoom polls
Collaborative Blueprint. The interactive and engaging virtual to better understand the diversity of the attendees and their
Summit explored retention in legal organizations, with a spe- interactions and diverse experiences in their organizations.
cific focus on understanding the factors Aleria also utilized a simulation to show
that lead diverse attorneys to leave their the effects of discriminatory policies on
organizations and the actions organiza- the retention of diverse employees. The
tions can take to not only retain diverse second half of their workshop analyzed
attorneys, but create an environment for personal and organizational environment
them to grow and succeed. data provided anonymously by attend-
Neeta M. Vatti, co-chair of the ees. After, the presenters showed the
CBA’s Diversity and Inclusion Commit- experiences of the attendees and their
tee, began the Summit by explaining interactions with other colleagues in
the event’s significance for not only their organizations, highlighting posi-
the Connecticut legal community, but tive experiences and some instances of
diversity and inclusion work in general. discrimination. Aleria’s key message was
She shared her personal story of coming that even with programs and initiatives
to the United States with her family, focused on diversity and inclusion,
traveling through multiple countries to fi- changing the organizational environ-
nally reach the US. Even as a child, she ment and practices was key to retaining
understood that diversity and inclusion diverse attorneys.
issues would remain important for how The afternoon keynote presentation
she navigated life. featured Attorney Sharon Jones of Jones
The first presentation was by CBA Diversity Inc. and was moderated by
president-elect and Diversity & Inclusion Attorney Sandra Yamate of the Institute
Committee co-chair, Cecil J. Thomas. for Inclusion in the Legal Profession. The
Similar to years past, President-elect keynote address focused on forming and
Thomas presented the data from the Connecticut Legal Com- fostering positive mentor-mentee relations in law firms, chal-
munity’s Diversity & Inclusion Pledge & Plan Signatories, which lenging both mentors and mentees to take certain action steps
showed an increase in diversity in signatory organizations. to better understand each other and thrive in the organization.
Though there is still progress to be made in the hiring and The facilitators participated in a candid dialogue sharing per-
retention of diverse associates, President-elect Thomas noted sonal experiences and suggesting possible courses of action to
that the pandemic had changed the course of many firms’ the attendees.
diversity and inclusion efforts. Therefore, the signatories would Thank you to the presenters and Diversity & Inclusion
revisit the topic of retention at the following year’s Summit. Summit Committee members for organizing an interactive and
The Diversity & Inclusion Pledge & Plan reflects a reaffirmation engaging event and to all of our sponsors, including platinum
of the legal profession’s commitment to approaching diversity sponsor Kronholm Insurance Services, gold sponsor Wiggin
and inclusion strategically, collaboratively, and with account- and Dana, and silvers sponsors Hinkley Allen and Pullman and
ability. The Pledge & Plan, along with the 40 organizations that Comley, for their support.
have signed on, may be viewed at ctbar.org/pledgeandplan.
Aleria PBC, a diversity and inclusion firm, delivered the
Summit’s plenary workshop. The company’s co-founders, Paolo GET THE NEWS and JOIN THE CONVERSATION
Gaudiano and Lisa Magill, presented an interactive workshop, www.ctbar.org
8 Connecticut Lawyer | ctbar.org January | February 2021News&Events
CBA MEMBERS HELP CT RESIDENTS CBA Pro Bono Clinics Go Virtual
EXERCISE THEIR RIGHT TO VOTE
The ongoing COVID-19 pandemic did not prevent more than
More than 175 CBA members helped Connecticut residents 25 attorneys and paralegals from volunteering at the CBA’s Pro
exercise their constitutional right to vote this past fall through Bono Clinics held virtually during the National Celebration of Pro
the Secretary Legal Assistance Program in partnership with the Bono Week, October 25 through November 1, 2020.
Office of the Secretary of the State Denise W. Merrill. Attorneys Throughout the three-day event, more than 50 clients re-
were on call to respond to issues at the polls, serve as an objec- ceived pro bono services in Zoom breakout rooms. The volun-
tive source of information, report back to the Secretary of the teer paralegals provided telephonic intakes prior to the event.
State, and communicate her directives. On the days of the clinic, the volunteer attorneys provided free
“Volunteer attorneys stood at the ready on Election Day legal advice in a range of practice areas, including consumer
from 6:00 a.m. to 8:00 p.m. until the polls closed and the last law, employee rights/unemployment, immigration law, landlord/
person in line had voted. tenant, family law, tax law, bankruptcy, and pardons.
We objectively assessed “Despite the pandemic and technology challenges, the
voting situations or in- Connecticut Bar Association was pleased to provide our virtual
consistencies brought to free legal clinics during National Pro Bono Week,” said CBA
us by the Secretary of the President Amy Lin Meyerson. “Through the provision of pro
State’s office, reported bono services, the CBA continues to work diligently to get
back, and resolved issues legal help to those in need and to narrow the access to justice
promptly by communi- gap. We also staunchly support our members who have the
cating Secretary Merrill’s passion for public service and for the protection of our human
directives to the voting and civil rights.”
moderator,” said CBA Thank you to all of those who volunteered at this important
President Amy Lin Mey- community event.
erson. “We were grateful
for these opportunities to
defend democracy and
protect the rule of law and were dedicated in assisting Secre-
tary Merrill and the Secretary of the State’s Office to safeguard
the integrity of our elections and ensure that the ballot of every
We know where to look.
registered Connecticut voter was counted.”
Volunteers responded to a handful of incidents on Elec-
tion Day.
Prior to Election Day, the Young Lawyers Section (YLS) im-
plemented a virtual voter registration drive on their social media
channels. Beginning in September, each week, they informed
their followers on how to check their voter registration status,
register to vote, apply for and return absentee ballots, make a
plan to vote on Election Day, register to vote on Election Day,
and provided a reminder to vote. They created original videos
and shared photos of themselves completing their civic duty.
“The YLS was happy to help encourage others to exercise
one of their most important civic duties. While we as lawyers
Image credit: studiostock/iStock/Getty Images Plus
might be accustomed to getting out on Election Day and more ForensicAccountingServices.com
keenly aware of the importance of exercising the right to vote,
we recognized that there are others that are not, and focused Embezzlement. Fraud. White-Collar Crime. Business Litigation.
on spreading information about voting to our non-lawyer We bring over thirty years of experience in uncovering the facts and
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matters. Contact us today at 860-659-6550.
“Thank you to everyone that ‘liked’ and ‘shared’ our posts and
special thanks go to Jermaine Brookshire, Jr. and my public
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January | February 2021 ctbar.org | Connecticut Lawyer 9News&Events
Young Lawyers Hike Ragged Mountain
The Young Lawyers Section (YLS)
organized a hike on Ragged Moun-
tain on Saturday, October 24. More
than 25 members signed up to get
outside, completed a 5.5-mile loop,
and networked with their peers at
their only in-person event of the fall.
“The event was a perfect op-
portunity to achieve networking,
social, and wellness goals,” said YLS
Membership Co-Director Jonathan
E. Friedler. “YLS members met at
Ragged Mountain in Berlin, Con-
necticut to traverse the Blue and Red
Blazed Loop Trail on a beautiful fall
morning.”
The YLS held multiple virtual
networking events, including a trivia
Members of the YLS hiked Ragged Mountain, in Berlin, on a beautiful fall day. night and their annual holiday party,
during fall 2020.
Stay Informed and
Connected with the Exclusively
for CBA
2021 Membership
Members
Guide and Directory
Convenient access to:
• Contact information for thousands of your colleagues
• Listings of CBA officers, section chairs, and staff
• MCLE requirements and resources
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10 Connecticut Lawyer | ctbar.org January | February 2021News&Events
CBA Sections Support TEN MEMBERS PARTICIPATE IN
Food Donation Organizations YEAR-LONG LEADERSHIP ACADEMY
The Workers’ Compensation and Young Lawyers Sections’ an- Ten CBA members were a part of the inaugural class of
nual events raised nearly $13,000 for Connecticut Food Bank the Connecticut Professionals’ Leadership Academy for
and Foodshare at a time when the number of food insecure emerging leaders. Members of the CBA, along with the
Connecticut residents is on the rise, as a result of the ongoing Connecticut Society of Certified Public Accountants,
pandemic. Hartford County Bar Association, CFA Society Hartford,
The Workers’ Compensation Section’s 22nd Annual Verril- Connecticut Chapter of the American Institute of Archi-
li-Belkin Workers’ Compensation Charity Golf Event, held on tects, and Connecticut Young Insurance Professionals,
September 17, raised more than $9,500 for Connecticut Food participated in the year-long development program to
Bank and Foodshare. strengthened leadership skills, build relationships, culti-
The Young Lawyers Section’s annual Horn of Plenty Food vate talent, and create a collaborative community among
Drive collected over $3,300 in monetary donations for Food- several professions. Jeremy L. Brown, Cindy M. Cieslak,
share during their two-week virtual food drive. Carrie M. Coulombe, Aigné S. Goldsby, Cody N. Guarnieri,
These donations resulted in approximately 32,260 meals Kaitlin M. Humble, Karissa L. Parker, Kimberly T. Smith,
for Connecticut residents who rely on food assistance this past Meghan E. Smith, and Matthew K. Stiles represented the
holiday season. CBA in this program. n
Thank You to the 2020-2021
1875 Society Members for All of Your Support
The 1875 Society, aptly named for the Connecticut Bar Association's (CBA) founding on June 2, 1875, is a group of members
committed to sustaining the CBA and the legal profession in Connecticut. The society’s financial donation supports the delivery of
essential programs for members and the public, and enables the CBA to maintain its high standards for ethics, professionalism, and
civility; advance the effective administration of justice; and build diversity and inclusion in the legal community.
Hon. Arnold W. Aronson Diane R Erickson Daniel Mazzone Lynne L. Pantalena
Hon. Elizabeth Bozzuto Chester W. Fairlie Thomas F. McGarry Joyce A Riccio
Hon. Alvin W. Thompson Seth Feigenbaum Maria McKeon Frank W. Russo
Myles H. Alderman, Jr. Victor M. Ferrante Elizabeth L. McMahon Sharadchandra Samy
Bonnie L. Amendola Meghan Freed Steven Mednick Laura-Ann Simmons
Raymond S. Andrews, Jr. James J. Gentile Herbert Mendelsohn Alix Simonetti
Eryn A. Bingle John Hamlin Amy Lin Meyerson Paul Small
George L. Bischof John W. Hetherington Ralph Monaco Lisa R Stevens
Joseph Burns Ginny Kim David M. Moore Thomas A. Toscano
Michael Cartier David Lincicome Nicole S. Mulé Charles Williams, Jr.
Richard A. Cerrato Michael D. Lynch Brian J. Murphy Gerard M. Wrynn
Thomas Dembinski John Maben Robert J. Nicola Michael R. Young
Join a growing group of leaders in the CBA who have joined the 1875 Society by contacting our Member Service Center at (844)469-2221 or msc@ctbar.org.
1875 Half Page-JanFeb2021.indd 1 11/25/2020 10:00:55 AM
January | February 2021 ctbar.org | Connecticut Lawyer 11UPDATE TO
The Lawyers’ Principles of Professionalism
Twenty-six years ago, the Connecticut Bar Association had the wisdom to memorialize those principles
which do and should define our profession, regardless of whether they are imposed by a regulatory
body. The honor of our profession is, in part, largely dependent upon these behavioral norms.
Preservation and advancement of the rule of law require their strict observance by all those who
are fortunate to call themselves lawyers.
I
n 2020, the Bar Association’s Professionalism Committee • I will agree to reasonable requests for extensions of time
undertook to update and expand the Rules. While they re- and for waiver of procedural formalities when the legiti-
flect a change in the times, at their core, the Principles are mate interests of my client will not be adversely affected;
the same—a statement of those values that makes us who • I will try to consult with my adversary before scheduling
and what we are as members of this honorable profession. depositions, meetings, or hearings, and I will cooperate
with her when schedule changes are requested;
We have reproduced the Principles below. Please ob- • When scheduled meetings, hearings, or depositions have to
serve them in your daily activities and share with all your be canceled, I will notify my adversary and, if appropriate,
colleagues. the Court (or other tribunal) as early as possible and enlist
their involvement in rescheduling; and
LAWYERS’ PRINCIPLES OF PROFESSIONALISM • I will not serve motions and pleadings at such time or in
As a lawyer, I have dedicated myself to making our system such manner as will unfairly limit the other party’s oppor-
of justice work fairly and efficiently for all. I am an officer of tunity to respond.
this Court and recognize the obligation I have to advance the
rule of law and preserve and foster the integrity of the legal Honesty:
system. To this end, I commit myself not only to observe the
Honesty and truthfulness are critical to the integrity of the
Connecticut Rules of Professional Conduct, but also conduct
legal profession – they are core values that must be observed
myself in accordance with the following Principles of Profes-
at all times and they go hand in hand with my fiduciary duty.
sionalism when dealing with my clients, opposing parties,
As such,
fellow counsel, self-represented parties, the Courts, and the
general public. • I will not knowingly make untrue statements of fact or of
law to my client, adversary or the Court;
Civility: • I will honor my word;
Civility and courtesy are the hallmarks of professionalism. • I will not maintain or assist in maintaining any cause of ac-
As such, tion or advancing any position that is false or unlawful;
• I will be courteous, polite, respectful, and civil, both in oral • I will withdraw voluntarily claims, defenses, or arguments
and in written communications; when it becomes apparent that they do not have merit or
are superfluous;
• I will refrain from using litigation or any other legal proce-
dure to harass an opposing party; • I will not file frivolous motions or advance frivolous
positions;
• I will not impute improper motives to my adversary unless
clearly justified by the facts and essential to resolution of •W
hen engaged in a transaction, I will make sure all in-
Image credit: Designer/DigitalVision Vectors
the issue; volved are aware of changes I make to documents and not
conceal changes.
• I will treat the representation of a client as the client’s trans-
action or dispute and not as a dispute with my adversary;
Competency:
• I will respond to all communications timely and respectful-
ly and allow my adversary a reasonable time to respond; Having the necessary ability, knowledge, and skill to effec-
tively advise and advocate for a client’s interests is critical to
• I will avoid making groundless objections in the discovery
the lawyer’s function in their community. As such,
process and work cooperatively to resolve those that are
asserted with merit; • I will keep myself current in the areas in which I practice,
12 Connecticut Lawyer | ctbar.orgJanuary
ctbar.org January | February
February 2021and, will associate with, or refer my client to, coun- • I will exemplify through my behavior and teach through
sel knowledgeable in another field of practice when my words the importance of collegiality and ethical and
necessary; civil behavior;
• I will maintain proficiency in those technological advanc- • I will emphasize the importance of providing clients with
es that are necessary for me to competently represent my a high standard of representation through competency
clients. and the exercise of sound judgment;
• I will seek mentoring and guidance throughout my • I will stress the role of our profession as a public service,
career in order to ensure that I act with diligence and to building and fostering the rule of law;
competency.
• I will welcome requests for guidance and advice.
Responsibility: Honor:
I recognize that my client’s interests and the administration
I recognize the honor of the legal profession and will always
of justice in general are best served when I work responsibly,
act in a manner consistent with the respect, courtesy, and
effectively, and cooperatively with those with whom I inter-
weight that it deserves. As such,
act. As such,
• I will be guided by what is best for my client and the
• Before dates for hearings or trials are set, or if that is not
interests of justice, not what advances my own financial
feasible, immediately after such dates have been set, I will
interests;
attempt to verify the availability of key participants and
• I will be a vigorous and zealous advocate on behalf of
witnesses so that I can promptly notify the Court (or other
my client, but I recognize that, as an officer of the Court,
tribunal) and my adversary of any likely problem;
excessive zeal may be detrimental to the interests of a
• I will make every effort to agree with my adversary, as properly functioning system of justice;
early as possible, on a voluntary exchange of information
• I will remember that, in addition to commitment to my
and on a plan for discovery;
client’s cause, my responsibilities as a lawyer include a
• I will attempt to resolve, by agreement, my objections to devotion to the public good;
matters contained in my opponent’s pleadings and dis- • I will, as a member of a self-regulating profession, report
covery requests; violations of the Rules of Professional Conduct as required
• I will be punctual in attending Court hearings, confer- by those rules;
ences, meetings, and depositions; • I will protect the image of the legal profession in my daily
• I will refrain from excessive and abusive discovery, and I activities and in the ways I communicate with the public;
will comply with all reasonable discovery requests; • I will be mindful that the law is a learned profession and
that among its desirable goals are devotion to public ser-
• In civil matters, I will stipulate to facts as to which there is
vice, improvement of administration of justice, and the
no genuine dispute;
contribution of uncompensated time and civic influence on
• I will refrain from causing unreasonable delays; behalf of those persons who cannot afford adequate legal
• Where consistent with my client’s interests, I will commu- assistance; and
nicate with my adversary in an effort to avoid needless • I will support and advocate for fair and equal treatment
controversial litigation and to resolve litigation that has under the law for all persons, regardless of race, color, an-
actually commenced; cestry, sex, pregnancy, religion, national origin, ethnicity,
• While I must consider my client’s decision concerning disability, status as a veteran, age, gender identity, gender
the objectives of the representation, I nevertheless will expression or marital status, sexual orientation, or creed
counsel my client that a willingness to initiate or engage and will always conduct myself in such a way as to pro-
in settlement discussions is consistent with zealous and mote equality and justice for all.
effective representation.
Nothing in these Principles shall supersede, supplement, or
Mentoring: in any way amend the Rules of Professional Conduct, alter
existing standards of conduct against which a lawyer’s con-
I owe a duty to the legal profession to counsel less experi-
duct might be judged, or become a basis for the imposition of
enced lawyers on the practice of the law and these Principles,
any civil, criminal or professional liability. n
and to seek mentoring myself. As such:
January | February 2021 ctbar.org||Connecticut
ctbar.org Connecticut Lawyer
Lawyer 13Connecticut
Judicial Branch
Responds to
COVID-19
Challenges By JUDGE PATRICK L. CARROLL III
14 Connecticut Lawyer | ctbar.orgJanuary | February 2021IN THOSE FIRST DAYS OF THE GLOBAL PANDEMIC, THE CONNECTICUT JUDICIAL BRANCH FACED
challenges it had never before faced. From day one, however, we moved forward with a clear
vision: We would balance our constitutional responsibilities with the Branch’s overarching goal
of keeping the bar, members of the public, and our employees, family support magistrates, and
judges safe and healthy. We worked closely with the bar in achieving these goals, and we are
grateful for the remarkable cooperation, primarily through the CBA’s 2020 COVID-19 Pandemic
Task Force.
It is important to note that the Judicial Branch products “Remote Justice.” Although technolog-
never closed. Initially, we limited court business ical limitations of the Cisco system have neces-
to the most essential functions, which entailed sitated the ongoing scheduling of some in-court
suspending operations in many courthouses, to proceedings, particularly in our criminal courts,
allow us to make physical alterations to our fa- the Remote Justice platform has allowed attor-
cilities to make them safer for in-person proceed- neys and parties to participate in Supreme, Ap-
ings, while simultaneously expanding remote pellate, and Superior Court proceedings without
functionality. Fortunately, the Branch already having to go to a courthouse. The Judicial Branch
had in place the foundation to handle some cas- continues to further reduce the number and fre-
es remotely. In fact, the Judicial Branch has for quency of in-court proceedings, although the sig-
some time conducted a wide range of video-con- nificant costs attendant to the technological ad-
ferenced proceedings from Department of Cor- vancements necessary to achieve that goal have
rection facilities, including habeas, family, and hampered our effort to do so more quickly. The
some civil proceedings. Judicial Branch has also published two remote
guides and created a Remote Justice webpage to
The Judicial Branch first focused on its existing assist attorneys and parties in preparing for such
technological infrastructure of Cisco equipment proceedings.
for arraignments of individuals held on bond,
domestic violence arraignments, and temporary Needless to say, all of these technical advance-
restraining order hearings. We found a way to ments have inalterably transformed how we do
process these cases, while also reducing the num- business on the Supreme, Appellate, and Superi-
ber of people gathering in a courtroom. or Court levels. As an example, the Supreme and
Appellate courts heard oral arguments remotely
Meanwhile, our Information Technology Divi- in April and May. Beginning in September, both
sion began exploring other technologies to ex- the Supreme and Appellate Courts have the abil-
pand the types of cases being heard. We applied ity to conduct oral arguments in the courtroom
three standards in evaluating three main video or remotely.
platforms: WebEx, Microsoft Teams, and Zoom.
First, did the platform meet the high standards Regarding Superior Court matters, virtually all
of the Branch’s IT security team? Second, did it civil pretrials and oral arguments are occurring
meet the requirements of the criminal, civil, fam- remotely, as are courtside trials and hearings.
Image credit: rclassenlayouts/iStock/Getty Images Plus
ily, and juvenile divisions? Third, could we eas- The only civil matters done in person during
ily deploy the platform and provide support to the pandemic are civil orders of protection. Ad-
Branch employees and judges? In the end, we se- ditionally, we streamlined other processes to
lected Microsoft Teams and partnered with For improve remote access, including the creation
the Record, also known as FTR, for recording the of an online dispute resolution pilot program
remote Teams proceedings. Adding to our lev- for the remote resolution of small claims mat-
el of confidence with FTR was the fact that the ters. Finally, we created a mechanism that al-
Branch has used FTR as its vendor for the digital lows attorneys and self-represented parties with
recording of proceedings for more than 20 years. e-filing access to submit their PDF document ex-
hibits electronically through E-Services for both
We call the combination of Cisco, Teams, and FTR civil and family cases.
January | February 2021 ctbar.org | Connecticut Lawyer 15Covid-19 Challenges
As for family court, final agreements re- of Children and Families may e-file per- The Jury Restoration Working Group
sulting in entry of judgment in divorces, manency plans and other filings on child was formed in the summer to coordi-
legal separations, custody actions, visita- protection cases, which expands our elec- nate Branch efforts to resume jury pro-
tion actions, and post-judgment motions tronic capability. ceedings, and, as a result of that working
can be submitted, approved and ordered group’s recommendations, we have made
electronically. Additionally, family court As noted earlier, we continue working physical alterations to courtrooms to en-
judges and family court relations coun- to streamline the processing of criminal sure social distancing. We also secured
selors conduct remote status conferences cases and reduce the number of court personal protection equipment for jurors,
and pretrials by either phone or Micro- appearances necessary to resolve a case. judges, and staff, and by September, the
soft Teams. Trials, case dates, and hear- Like their colleagues in the other disci- working group had developed a frame-
ings, including at the Regional Family plines, criminal judges are conducting work to resume jury selection in early
Trial docket, are also conducted remotely some pretrials remotely, and attorneys November. However, due to the spike in
using Microsoft Teams. Default divorces with several different cases now have COVID-19 positivity rates, we concluded
that are eligible by statute for a ruling on the ability to consolidate them into one that it was inadvisable to bring jurors into
the papers may be submitted electroni- session. Additionally, we are in the pro- courthouses for trials at that time. We ex-
cally. Finally, family support magistrate cess of moving arraignments from the pect to be able to employ these safety fea-
hearings are conducted remotely using Cisco platform to Microsoft Teams. Once tures in the not-too-distant future, when
Microsoft Teams. completed, Microsoft Teams will afford enough of the population has been vacci-
private defense attorneys with the op- nated so that in-person activities may be
The juvenile courts are also using Micro- portunity to participate in proceedings safely resumed, subject to social distanc-
soft Teams for ontherecord virtual court remotely. ing protocols.
hearings as well as offtherecord status
conferences for child protection matters. Conducting jury trials during a pan- The working group is now focusing on the
Additionally, officials at the Department demic has been and remains a challenge. possibility of holding virtual jury selec-
tion and trials. We understand that there
will be significant challenges to holding
jury trials remotely such as the need to
bridge the “digital divide.” As such, we
are looking at providing tablet technology
to jurors. Understandably, it will be easier
to conduct civil virtual trials than criminal
virtual trials because of the need to pro-
tect the constitutional rights of defendants
CONNECTICUT CHAPTER and crime victims. We fully recognize this
dynamic and are sensitive to the needs of
all involved as we move forward.
Check preferred mediation dates or schedule
Clearly, COVID-19 has challenged us all.
appointments online with the state’s top-rated Throughout this pandemic, we have had
to pivot and change course as we bal-
civil trial mediators & arbitrators - for free. anced our constitutional obligations with
our overarching goal of keeping everyone
www.ConnMediators.org safe. With extremely limited resources, we
created a remote, virtual platform to pro-
cess court business. We understand that
change is difficult, and we appreciate the
patience of the bar as we move through
this crisis. If there is a silver lining, it is
that the Branch has had to modernize at a
pace that would not have occurred with-
out the pandemic. n
Judge Patrick L. Carroll III is the chief court
administrator.
This free Bar service funded by local members of NADN - see www.NADN.org/about
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January | February 2021 ctbar.org | Connecticut Lawyer 17Technology and Legal Ethics:
Defining
Competence
an Increasingly
in
Online World
By BRENDON LEVESQUE and MICHAEL TAYLOR
I
INTRODUCTION COMPETENCY
n the past, lawyers were deemed to be compe- At the core of legal professional conduct is a lawyer’s
tent based on their experience and knowledge duty to provide competent representation to his or
her clients. Under Rule 1.1 of the Rules of Professional
of a substantive area of the law. Today, compe- Conduct, a lawyer has a duty to provide competent represen-
tence means that lawyers are expected to take tation to clients. Competent representation requires the legal
knowledge, skill, thoroughness, and preparation reasonably nec-
reasonable steps to understand how technolo- essary to provide representation to the client. The comments to
gy may affect their legal representation. As technology the Rule make clear that this obligation extends to technologi-
cal competence as the role of technology grows within the legal
has evolved, so has the concept of competence.
field (though the authors believe the obligation would exist even
if the comments were silent on the matter). In order to provide
More and more, the Rules of Professional Conduct require law-
competent legal representation, therefore, a lawyer must stay ap-
yers to have a reasonable proficiency in a number of online and
prised of changes in the law and legal practice, including the use
technology-based skills. Where lawyers only a generation ago
of technology in practice.
might have considered these things arcane and outside the scope
of a lawyer’s skill set, the point of this article is to serve as a re-
We have identified six areas in which practitioners need to
minder—or a warning for those who need it—that these once
demonstrate and maintain technological competency. First, at-
arcane skills are now part of a lawyer’s daily routine, and are
torneys need to understand and maintain cyber security to en-
becoming more so by the day. While the rules still do not directly
Image credit: Denis Putilov/123RF.com
sure information relating to client representation is safeguarded.
reference technological aptitude to any great extent, the reality
Second, attorneys should be proficient with electronic discovery,
and the way we all interact with clients and with the online world
including the preservation, review, and production of electronic
brings technological awareness, if not aptitude, clearly within the
information. Third, technology can be used to deliver legal ser-
scope of several rules. We here offer the most common ways that
vices more efficiently, through things like automated document
the Rules intersect with the online/technological world. We hope
assembly, electronic court scheduling, and file sharing technolo-
this is a useful refresher and compilation for those who know,
gy. All of which are widely used. Fourth, attorneys should under-
and it’s a great place to start for those who don’t.
stand how technology is used by clients to offer services or man-
18 Connecticut Lawyer | ctbar.org January | February 2021ufacture products. Fifth, using technology can be an efficient and derstand how the tech lawyers in your practice are using works?
effective way to present information in the courtroom, and even Do you understand how the technology your clients are using
necessary to present certain evidence. Sixth, attorneys can and works? Do you know how to use technology in the courtroom?
often must conduct internet-based investigations through simple If the answers leave you uncertain, there are a number of helpful
internet searches and other research tools available online. online resources that are readily available.
Not only is staying appraised of new uses of technology an ethi- ONLINE ARGUMENTS
cal obligation, but there are also benefits to being technologically A critical area of change to legal practice in Con-
competent. Technology can level the playing field by making in- necticut since the onset of the coronavirus pan-
formation more accessible. Over time, increased use of technol- demic has been the shift to online oral arguments
ogy can help save money which can allow you to pass savings and hearings. The decorum expected in court is still expected
along to low-income clients (if you’re altruistic). Technology can while you’re broadcasting from your dining room table, but the
also increase efficiency and help manage time. elements required to achieve it have changed. Ensuring you have
a quiet, distraction-free environment and an appropriate back-
Today, more than ever, effective use of technology is important to ground are critical for participation in an online oral argument
providing competent legal services. From the outset of the coro- or video conference. Even though you are not physically in the
navirus pandemic, legal services have increasingly shifted to an courtroom, it is still important to wear proper courtroom attire.
online platform. To continue providing competent legal services, Appropriate demeanor, such as sitting upright in your chair, also
attorneys in Connecticut need to become proficient with working is still important online.
in an online world and to do so far more quickly than anyone
anticipated. Attorneys should conduct a review of their skill set, Another important step is maintaining high-speed internet ser-
today. The best thing to do is to determine how comfortable you vice, which means 4G or LTE cellular with a sufficient data plan
are using case management software, document management or cable internet service. Ensuring that your computer is the only
software, online billing software, email, working with PDF doc- device using the internet (no family members streaming mov-
uments, using Microsoft Office Suite, and social media. Critical ies or gaming online), and closing all other unnecessary internet
questions to ask are: Do you understand how your data security applications (email, additional open windows in your browser,
works? Do you understand how e-discovery works? Do you un- etc.) will help maintain the best connection possible throughout
January | February 2021 ctbar.org | Connecticut Lawyer 19Technology and Legal Ethics
the argument. A computer or tablet with web cam is necessary CONFIDENTIALITY
for most conferences or arguments. Consider your camera place- A critical consideration when using technology is confi-
ment x an oral argument. The camera should be at eye level or dentiality. Under Rule 1.6: (a) A lawyer shall not reveal
slightly above eye level. Looking directly into the camera will information relating to representation of a client unless
create the illusion of eye contact during an argument. Placing a the client gives informed consent, the disclosure is impliedly
lamp next to the side of your computer and not having a win- authorized in order to carry out the representation, or the dis-
dow behind you will create the best light for others to see you closure is permitted by subsection (b), (c), or (d). Further, under
on screen. subsection (e), a lawyer shall make reasonable efforts to prevent
the inadvertent or unauthorized disclosure of, or unauthorized
Before the argument, you should determine on which platform access to, information relating to the representation of a client.
the argument is being held, install the necessary application, and
grant any permissions necessary through your computer soft- The confidentiality required by this Rule goes far beyond the
ware (permission for the application to use your computer’s mi- scope and communications protected by the attorney-client priv-
crophone, camera, etc.). Platforms for arguments or conferences ilege. Under Rule 1.6, a lawyer may not make disclosures unless
may include Google Chrome (which can be downloaded online), the client gives informed consent, or the disclosure is impliedly
Microsoft Teams, or Cisco Meeting app (which can be download- authorized to carry out representation. The only exceptions to
ed for free through the Apple app store). this are: to prevent death, serious bodily harm or fraud, to secure
legal advice regarding compliance with the rules, to defend the
To prepare, it is important to test everything at least 48 hours lawyer in controversy with client, to respond to allegations in
before the oral argument or conference call. For the test, use the any proceeding, to comply with a court order, and to do conflict
same equipment and location as you plan to use for the oral argu- checks.
ment. Moots can also be conducted via video conference, WebEx,
Zoom, or Microsoft Teams. During the test, make any necessary Law firms should consider implementing online safeguards for
adjustments and test them as well. Testing out the platform will client information, because they are often targeted for hacking.
also give you the opportunity to learn how to use the software Law firms house a lot of valuable information and frequently
effectively during the oral argument, such as knowing how to have sub-standard security. Not only does the Rule require rea-
mute and unmute your microphone and what volume to speak sonable steps by the lawyer to protect client confidences, but the
at. You can also practice sharing your screen to show a document cyber security regulation of law firms is rapidly increasing and
during an argument if you wish. As trial courts become more clients increasingly are making data security a key criterion for
comfortable with digital exhibits, this skill becomes increasingly their vendor relationships. Cyber security can easily be increased
important. by encrypting, using caution with cloud devices, vetting vendors,
properly training staff, having a password policy, and having cy-
Do not use the meeting chat feature unless you need to advise ber liability insurance. Cloud services promote mobility, flexibil-
the court of some technical difficulty (e.g., the court cannot hear ity, organization, and efficiency. However, the Rules require that
you), because everyone will see the comments and they may be lawyers make reasonable efforts to meet their obligations to pre-
recorded. Use Teams, Slack, or text messaging to “chat” with serve the confidentiality of client information and to confirm that
co-counsel (provided co-counsel has been approved). any third-party service provider is likewise obligated.
As a reminder: participants in court hearings are prohibited from Password protection is key for maintaining confidentiality. When
recording the proceedings. A transcript of the hearing or argu- using iOS devices, best practices are to use a 6-digit passcode
ment can be ordered after the argument. Any recording will sub- (better than 4), enable Touch ID, enable Face ID, and turn on
ject you to sanctions. remote data erase. In general, do not use easily guessed pass-
words, such as “password” or “user.” When creating a password
ONLINE FILES do not use confidential details, such as birthdays, Social Securi-
As of November 16, 2020, Connecticut has re- ty numbers, phone numbers, names of family members, or adja-
quired the mandatory submission of exhibits cent keyboard combinations, such as “qwerty” and “asdzxc” and
in electronic format. E-services procedures and “123456.” Do not use your email account password at an online
technical standards are available online at the Connecticut retailer. Whenever possible, turn on two-factor authentication
Judicial Branch website (jud.ct.gov/external/super/e-ser- (2FA) on your mobile device, which adds an additional authen-
vices/e-standards.pdf). The Judicial Branch website also has a tication step to your basic login procedure. Apple, Google, Mic-
guide to remote hearings to help preparations for oral argu- rosoft, Slack, Twitter, LinkedIn, and Amazon are among some of
ments (jud.ct.gov/homePDFs/connecticutguideremotehear- the platforms where 2FA is available.
ings.pdf). Staying up-to-date on changes in the legal field, such
as open courts, is critical and can be found online (jud.ct.gov/ Other good online practices include not downloading files from
COVID19.htm). a commercial web email or entertainment sharing sites. Do not
open emails from unknown users or other suspicious emails. Do
20 Connecticut Lawyer | ctbar.org January | February 2021You can also read
