By Mary Pat Gallagher, From New Jersey Law Journal

Lawyers and others who want to tap away at their smartphones and tablets while in court will be able to do so under newly issued guidelines from the New Jersey Supreme Court.

The Guidelines on Electronic Devices in the Courtroom, promulgated as Directive 08-14, were announced Dec. 16 and are set to take effect Feb. 2.

Citing advances in technology that have produced portable devices capable of capturing and transmitting images from court, and the blurred definition of “journalist” in the age of blogging, the directive identifies the guidelines’ goals as providing public access to the courts and allowing use of new technology, while ensuring fairness to litigants, avoiding delay or interference with court proceedings and maintaining “appropriate court decorum.”

The guidelines replace those set forth in a 2003 directive that dealt only with cameras in the courtroom, leaving the devices that have proliferated since then subject to restrictions that could vary from judge to judge or vicinage to vicinage.

The new guidelines, which will standardize practices throughout state, municipal and tax courts, cover a wide range of electronic devices and apply to anyone who brings them to the courthouse, with no different treatment for lawyers or members of the media.

“Electronic device” is broadly defined as any device, including portable ones and those now in existence or “later to be developed,” with “the capability to transmit, broadcast, record and/or take photographs.”

Courthouse visitors in hallways and other common areas will be free to possess and use the devices for any purpose other than taking photographs, or recording or broadcasting video or sound.

But any use of them inside the courtroom will require a written agreement, which must be renewed on an annual basis.

Lawyers and other prospective users will have to sign and submit an “Agreement for the Use of Electronic Devices,” in which they state that they will comply with the guidelines, and that failure to do so can result in sanctions, such as contempt of court.

They also consent to carry a copy of the form—countersigned by the trial court administrator or clerk—at all times when in the courthouse.

Rather than tote that piece of paper around for a year, however, users will have the option of displaying it on an electronic device.

People with the agreements will be allowed to use their electronic devices in the courtroom to “silently take notes and/or transcribe and receive communications and information”—presumably by way of emails, texts and browsers.

For lawyers, that means being able to pull up court opinions and other needed information, no longer needing to lug around the nearly 3,000-page book with the Rules of Court, and not having to step out in the hall to communicate with their offices and clients.

The language leaves it unclear whether email messages may be sent, in addition to received, in the courtroom.

Judiciary spokeswoman Winnie Comfort said she thought emails could be sent so long as they are not widely distributed blasts about what is going on in the courtroom and do not contain photos or recordings taken there.

On the other hand, tweeting, which typically goes out to a large audience, would likely fall within the requirement for advance permission from the judge in order to photograph, electronically record or broadcast court proceedings.

Unlike the 2003 directive on cameras, the new guidelines do not limit that permission to “bona fide media outlets” or people with press credentials.

The rationale, according to the directive, is that, in administering the electronic device guidelines, courts should not have to determine who qualifies as a journalist but instead “focus on the uses to which such devices are put.”

Those seeking to record and broadcast, who must also have the agreement to use electronic devices, will have to submit a separate form identifying the matter they want to cover and indicating whether they seek permission for a specific proceeding on a given date or permission for all proceedings open to the public.

And they have to agree to provide pooling capabilities, as traditional media do under the current directive. That means they have to pool their video/audio signals if requested and possess the capability to do so through “multiple electronic connections.”

The guidelines also set rules for how the recording and broadcasting are to be done.

For example, “distracting sound or light” is prohibited, restrictions are imposed on when and where equipment can be placed, and those doing the recording or broadcasting are not allowed to move around.

In addition, blanket restrictions bar recording crime victims younger than 18 and witnesses under 14 without court approval. Still photographs and silent video of conversations between attorneys and clients are allowed but not sound recording or transmissions, nor can sidebars with the judge be captured except by still photographs.

Judges can not only refuse to allow recording and broadcasting in their courtrooms but can rescind or modify previously granted permission if circumstances warrant.

They can also override the agreements allowing use of electronic devices, “if such use interferes with the administration of justice, poses a threat to safety or security, or compromises the integrity of the proceedings.”

The new guidelines, drafted by a subcommittee of the Supreme Court Bench-Bar Media Committee, were first published for comment in September 2011.

In November 2011, the New Jersey State Bar Association’s board of trustees voted to ask the Supreme Court to send the proposal back to the committee “for further review and elaboration regarding the application of the rules to attorneys, the media and general public.” It also stated, “In lieu of such action, the trustees will suggest that attorneys—as sworn officers of the court—be exempt from the regulations.”

Directive 08-14 indicates that the guidelines were revised but lawyers are accorded no special treatment.

Thomas Cafferty of Gibbons in Newark, who chaired the subcommittee, said the group did not see it as “onerous” to require the annual agreements from lawyers.

State bar president Paris Eliades said in a statement that “the time has come for the courts to take into consideration the way technology has advanced and is being used in the judicial system” but “we continue to believe attorneys should be exempted from requirements to complete and always have a copy available of a form giving us permission to use electronic devices in courtrooms to do essential tasks like check email and communicate with our support teams.” He said the group will “ monitor the use and application of these guidelines in the legal community in the coming months and provide the court additional information, should any issues arise.”

It was initially proposed that the agreement forms be distributed to lawyers and collected from them as part of the annual registration process. That idea was dropped from the final version, possibly in response to a comment from Supreme Court Clerk Mark Neary, who said it might distract lawyers from the registration process and lead to more inaccurate or incomplete forms.

Neary also wrote that it might not be effective in educating lawyers about the guidelines and the need for the agreements. “As we learned from our recent experience in adding the CLE certification to the registration process, a significant number of attorneys do not even read the registration form closely, and appear to pay less attention to any enclosures.”

Cafferty, who is general counsel to the New Jersey Press Association, called the guidelines “a significant step forward in recognizing the changing nature of who is media and how news is gathered.”

He also said they will address the current lack of uniformity on electronic devices, providing a set of “ground rules, while still retaining ultimately the discretion of the trial judge to control the courtroom.”

First Amendment lawyer Frank Corrado of Barry Corrado & Grassi in Wildwood, N.J., commented, “I doubt anyone is pleased when public access requires additional licensing and monitoring, or an additional level of bureaucracy. But technology has revolutionized information-gathering, and the courts must deal with that.”

He recalled the guidelines as “a good start” and “a thoughtful attempt to deal with a difficult issue and to reconcile a number of important competing interests.”

IMAGE: Credit: KochPhoto

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