During the COVID-19 crisis, the use of video conference has been on the rise for lawyers and law firms. Not only are lawyers and law firms using video conference for a client and potential client meetings, but it is also utilized for court proceedings. Some law firms are even using video conferences to conduct job interviews.
Many court orders have specifically encouraged the use of video conferencing. On March 31, 2020, the federal judiciary issued an order authorizing the use of video-audio access during the COVID-19 Pandemic. The order states the following in pertinent part:
“To address health and safety concerns in federal courthouses and courtrooms, the Judicial Conference of the United States has temporarily approved the use of video and teleconferencing for certain criminal proceedings and access via teleconferencing for civil proceedings during the COVID-19 national emergency.
The CARES Act provides that the authorization of video and telephone conferencing will end 30 days after the date on which the national emergency ends, or the date when the Judicial Conference finds that the federal courts are no longer materially affected, whichever is earlier.”
The Missouri Supreme Court entered an order with a similar language on April 1, 2020. The order states the following in pertinent part:
“While hearings in individual cases of these types can be set by judges, and such hearings can be held in person, judges are encouraged to utilize all available technologies – including teleconferencing and video conferencing – to further limit in-person courtroom appearances to the extent not prohibited by the constitution or statutes as to these proceedings.
This Order does not affect a court’s ability to consider or rule on any matter that does not require an in-person court proceeding, and judges are encouraged to utilize all available technologies – including teleconferencing and video conferencing – to conduct suspended in-person proceedings remotely.”
Video conferencing may end up separating the law firms that succeed or fail during the Coronavirus Pandemic. For law firms that have been resistant to the idea of video conferencing, now is the time to give it a try. It is simple, easy, and effective.
Far and away, one of the most popular applications that lawyers, law firms, and courts are using is Zoom. While Zoom is a profoundly popular video conferencing tool, and easily the most well-known name, it has come under increasing criticism lately.
Hackers have targeted Zoom because of its popularity, which has led to warnings to consumers from the FBI about so-called “Zoom Bombing” incidents. In response to the backlash, Zoom Chief Executive Eric Yuan addressed some of the privacy concerns by stating that Zoom has “fallen short of the community’s – and our own – privacy and security expectations.”
Zoom also claims to have patched up flaws recently identified by security research. Still, they have conceded that they “should have done something to enforce password and making room and double-check[ing] every Zoomer’s settings…”
The question for many lawyers and law firms is whether these assurances are good enough? ABA Formal Ethics Opinion 477 is essential as it relates to the security measures needed for electronic communication. In that opinion, the Committee determined that unencrypted communications are not always sufficient for client communications. Instead, lawyers must assess and then choose the most appropriate and sufficiently secure method of communicating and collaborating. ABA Formal Opinion 477 states specifically:
“[L]awyers must, on a case-by-case basis, constantly analyze how they communicate electronically about client matters, applying the Comment  factors to determine what effort is reasonable.”
Further, according to a recent article, Zoom does not offer end-to-end encryption in a technical sense, despite their assertions to the contrary. Instead, Zoom concedes: “Currently, it is not possible to enable E2E encryption for Zoom video meetings. Zoom video meetings use a combination of TCP and UDP. TCP connections are made using TLS and UDP connections are encrypted with AES using a key negotiated over a TLS connection.”
End-to-end encryption is a system of communication where the only people who can read the messages are the people communicating. Notwithstanding the popularity and general ease of use, the security issues presently make Zoom problematic from an ethical and security standpoint for lawyers and law firms.
In short, while Zoom is just one recent example, before deciding what video conferencing software to utilize, it is vital that law firms do thorough research about the security and privacy of the software to ensure that confidentiality is protected. While Zoom is widespread and quickly becoming a household name, law firms and attorneys must utilize trusted software that has property security and encryption measures through thorough vetting.