BY:
Alexis de Hahn
Avocat Reporteur
PROJECT COUNSEL MEDIA
6 August 2020 (Paris, France) – There have been blog posts, ad nauseam, about the lessons the legal industry will learn from the COVID-19 crisis, one of the biggest topics being online remote courts which have been made necessary due to pandemic restrictions preventing the opening of physical courts. There’s a huge backlog of cases building up. The most critical are criminal matters: do we adjourn cases, often incarcerating people indefinitely, or do we find other methods of conducting serious criminal trials?
Remote courts raise a wide series of issues about all conceptions of justice: substantive justice, procedural justice, proportionate justice – just the whole general issue of the access to justice.
And, of course, given the modern technology available for teleworking and teleconferencing of judicial proceedings, we need rules in place for photographing, recording, and broadcasting court proceedings. The UK judicial system is pretty far along in developing procedures for these matters … and the UK High Court does not take breaches of the rules lightly.
U.S. law firm McDermott Will & Emery has reported itself to the Solicitors Regulation Authority (SRA), as well as two of its disputes partners, after a High Court judge highlighted there were “serious issues” related to their professional conduct during a recent case. The move follows a High Court judgment handed down today which said there had been a breach of the Criminal Justice and Contempt of Court Act for allowing live court proceedings to be streamed to individuals abroad. This was in spite of a previous order from Mr Justice Warby in the case of Gubarev & Ors v Orbis & Ors that made clear no such activity was to be permitted.
The breach relates to a three-day period in July 2020, during which time the court says proceedings were live-streamed to a number of individuals in the United States, Russia and Cyprus without permission. In the judgment, the President of the Queen’s Bench Division Victoria Sharp and Mrs Justice Andrews describe this as a “deeply worrying” state of affairs.
A series of communications took place prior to the trial to deal with how the hybrid affair would proceed in line with coronavirus restrictions. Before the hearing, the U.S. firm set out a series of requests, including the use of a second courtroom and the Opus 2 platform. McDermott subsequently asked for a live recording to be made available for participants unable to attend. However, Warby J passed an order rejecting the request on 14 July. Sharp and Andrews have since added:
This is not something which a judge would ordinarily expect to have to do, as legal professionals who use the courts are expected to be familiar with the legal requirements concerning the broadcasting of proceedings.
Lynsey McIntyre, the McDermott partner in charge of the day-to-day handling of the case, claimed that she did not review Warby J’s order on the weekend prior to the first day of the hearing on 20 July. The judgment read:
We find it surprising that she did not review the Order as it bore directly on how those proceedings were to be conducted.
It was then on the third day of the proceedings that it emerged a video link of live proceedings had been shared to remote witnesses, with a separate witness appearing on one of the video screens during the cross-examination of another. In the transcript, Warby J said:
It seems to me that there has been a lot of failures of understanding at various places. I don’t know how they’ve come about, I’m not blaming anyone for the moment, I’m just expressing quite profound dissatisfaction with the disruption and the disorganised way in which these proceedings have been partly transmitted to places that they should have been transmitted and apparently transmitted to places which were not yet authorised.
McDermott partner Ziva Robertson, who came onto the case in 2017, later sent an email to the judge’s clerk apologising. She claimed that “because an unsecured Zoom link had been set up and was being used in the courtroom next door”, she thought it was permissible for the link to be used remotely. She added that she was influenced by the fact that the “Zoom link had been sent to various people by Opus 2 in what seemed to be a routine way”.
However, the most recent judgment criticises both Robertson and McIntyre for their actions: “It is difficult to think what more the judge could have done to express what was and was not permissible,” it reads.
The judge also claims that the explanations that have been given are “difficult to comprehend and lack coherence”, nor do they explain why someone of “Robertson’s seniority thought it would be acceptable for what she knew to be an unsecure link to be sent to anyone, let alone without any restrictions on it being forwarded to others.”
The court added that the partners’ actions demonstrate “a casual attitude” towards court orders “which falls well below the standards to expected of senior and experienced legal professionals” as well as a “lack of appropriate guidance and supervision of more junior staff”.
It was also noted that there appeared to be a “lack of focus on and engagement with the seriousness of the breaches” until prompted by the judge. However, the court did accept “that this matter has been taken extremely seriously thereafter” and that Robertson has accepted her responsibility for what happened and has made a “full and unreserved apology”. It was also recognised that this was not a “case of deliberate defiance” against Warby J’s order.
In response to this judgment, a McDermott spokesperson said:
We respect the judgment of the Court and regret our error in this matter. We note that the Court did not find these actions to be deliberate and recognised our self-reporting to the SRA. We continue to act with the rigor and precision on which our firm was founded.
Meanwhile, an SRA spokesperson said: “We are looking into the information we have before deciding on next steps.”
