“You have undoubtedly now had virtual meetings with your colleagues, your instructing solicitors, compliance experts and witnesses on platforms such as Zoom, Webex and Microsoft Teams, which is now as familiar as Austlii and Jade,” Ms Clayton said. “In all likelihood, there will [always] be some part of work in a virtual environment.”

There were four rules that stood out from judges on conducting and ensuring etiquette in a virtual setting. The first was to remember that “chit-chat” in waiting rooms or while expecting the judicial officer will be likely heard by everyone. Barristers should be wary of the chat function, which may be delivered to everyone rather than the one person. 

Thirdly, barristers should not be afraid to request to confer with a junior or an instructing solicitor in a separate platform or on mute. 

VIEW ALL

Finally, if a barrister decides to use a virtual background, make sure it is neutral – Ms Clayton said: “We recommend you leave the Hawaii beach holiday or the galaxy far, far away for your social calls.” 

Supreme Court justice Andrew Keogh, joining Ms Clayton, warned that the fact courts are conducting virtual hearings does not mean they are not in the courtroom. As such, “you should behave and conduct yourself in a virtual hearing in exactly the same way that you would conduct yourself in a physical courtroom,” Justice Keogh added. 

County Court judge Arushan Pillay mirrored this, explaining that the notion that there is a court hearing and it is formal is critical to the integrity of justice. 

“I say that because it leads to all sorts of problems if we don’t maintain the notion that we are in a formal courtroom. It leads to problems with etiquette so [barristers] don’t address each other properly, it leads to trouble with dress and the real problem with all of that is it leads to perceptions from witnesses or defendants that they are not in a real, serious court hearing and that’s when there is a loss of faith in justice,” he said.

There are varying rules on robe etiquette. For Justice Keogh, he will robe and expects that counsels do the same: “It’s an important part of [maintaining] the seriousness of court processes and emphasising to witnesses and members of the public who might review the proceeding that we are conducting serious business [in the virtual room].”

However, for Judge Pillay, there is no strict rule unless that is what would typically take place in a physical hearing. Ms Clayton also clarified that barristers should check with counsel in certain conditions, including robe etiquette for directions hearings. 

In the beginning, barrister Richard Attiwill QC said he cross-examined a witness while they were on their mobile phone and warned there are significant risks if barristers are not checking the technology available, for themselves and their witnesses. 

He said he has never had anyone smoking, drinking or eating their lunch during a court hearing, but he did have a suspicion that someone was having instructions or prompts sent to them via their mobile phone and had to request the witness listen to him. 

There was also an issue in a major case where someone had not double-checked the technology before the hearing and ended up with such a poor connection that the court could not make sense of his submission: “You can’t just leave it for the 15 minutes the court sets aside. You’ve got to get it working yourself, I can’t emphasise that enough.” 

As for the witnesses, Justice Keogh added that steps should be taken to ensure there are no other devices with the witness. In one situation, one witness was looking at his side at a prompt, which “[robbed] the whole process of integrity”.  

“The first thing I’d emphasis with witnesses [is] it’s important that the circumstances in which the witness is giving evidence [replicate] closely as possible as what would have happened in person,” said Justice Keogh, adding that barristers abide by the rules that courts previously did while a witness was giving their evidence. 

***

Voting is now open for The Lawyers Weekly Award, to be presented to one individual for making substantial, consequential achievements in advancing the Australian legal profession since 2000. Finalists for this prestigious award have been confirmed as those listed below. To vote for your preferred winner, click here. 

Julian Burnside AO QC (barrister)

Bernard Collaery (barrister, former Attorney-General of the ACT)

Kate Eastman SC (barrister and co-founder, Australian Lawyers for Human Rights)

The Honourable Robert French AC (former chief justice, High Court of Australia)

Sue Kench (global chief executive, King & Wood Mallesons)

The Honourable Chief Justice Susan Kiefel AC (chief justice, High Court of Australia)

The Honourable Michael Kirby AC CMG (former justice, High Court of Australia)

Jane Needham SC (barrister and former president, NSW Bar Association)

Geoffrey Robertson AO QC (barrister)

Professor Gillian Triggs (assistant secretary-general, United Nations and former president, Australian Human Rights Commission)