Response to the Request by the Southern District of New York for Comments on Its Policy Regarding Cell Phones, Laptops, PDAs, and Other Electronic Devices in the Courthouse

14 Vesey Street

New York, NY 10007-2992

Response to the Request by the Southern District of New York
for Comments on Its Policy Regarding Cell Phones,
Laptops, PDAs, and Other Electronic Devices in the Courthouse

Prepared by the Committee on the Federal Courts
of the New York County Lawyers’ Association

This Report was adopted by the Executive Committee of the New York County Lawyers’ Association at its meeting on July 22, 2009.

The members of the Committee on the Federal Courts* are overwhelmingly in favor of being able to use cell phones, laptops, PDAs and other electronic devices in the courthouse in an appropriate, professional manner and for appropriate purposes of professional communication. The current policy prevents our members from efficiently communicating through means such as silent, unobtrusive emailing with their offices, clients, colleagues, adversaries and courts or governmental bodies, among others, and from utilizing the other electronic resources upon which they rely (such as calendars and contact lists) while in the courthouse. Although we are sensitive to the concerns of the Court with respect to security and decorum, we believe that reasonable provisions can be put in place to address these concerns. In short, it is our view that attorneys should, absent specific emergency situations, be allowed to bring and use electronic devices in the courthouse, and that use of such devices in the courtroom should be permitted, subject to imposition of reasonable restrictions or conditions by the presiding judge.

Before proposing specific recommendations, it would be helpful to review the current treatment of electronic devices in federal courts throughout the country. First, the overwhelming majority – if not all – federal courthouses have policies prohibiting taking photographs, making recordings or broadcasting in connection with any proceeding, and it appears that such policies have been in place for some time.

In the immediate aftermath of the terrorist attack on September 11, 2001, certain federal courts prohibited the use of cell phones altogether. At the time, the concern was that small weapons could be disguised as cell phones or hidden in other electronic devices. These policies became more relaxed as it became standard practice to run loose items, such as wallets and coats, through X-ray machines upon entering courthouses, and as X-ray operators became properly trained to detect anomalies.

Currently, the majority of federal courts allow attorneys to bring electronic devices into the courthouse. Some courts impose certain restrictions, such as requiring that electronic devices only be used in designated areas within the courthouse or that such devices be turned off or placed in silent mode when inside a courtroom. Laptops are routinely allowed in federal courthouses – indeed, a number of districts offer free wireless access. Certain courts demand that persons carrying laptops disable wireless communications. Other courts demand that the laptops have silent keyboards installed.

These policies on electronic devices, however, typically do not extend to members of the general public, who are often prohibited from carrying or using any electronic devices anywhere in the courthouse. It is interesting to note that certain courts have a policy for the use of laptops by members of the media. For example, some federal courts, such as the District of Massachusetts, have a process by which members of the media become credentialed and are allowed to use their laptops under certain conditions.

Other courts located in downtown Manhattan also allow the use of electronic devices. For example, New York state courts allow attorneys to use any type of electronic device within the courthouse. Federal bankruptcy courts in New York also allow attorneys to use PDAs within the courthouse, provided the phone is disabled and there is no camera. Last year, the Eastern District of New York adopted a policy permitting attorneys with identification to enter the courthouses with electronic devices and to have such devices in courtrooms, as long as cell phones are turned off and laptops and PDAs are rendered “silent.”2

The reality of the practice of law in the 21st century is that attorneys rely heavily on computers, cell phones and PDAs. Such devices are now as much a part of the typical lawyer’s professional equipment as is her briefcase or legal pad. Our members wish to use the non-camera functions of electronic devices within the courthouse so they may have access to their calendars and other electronic information, and so they may communicate with their offices, clients, colleagues and others who are not at the courthouse. Indeed, the use of electronic communications through mobile phones, email and electronic calendaring is now an essential tool of the profession, enabling practitioners to operate with the efficiency and speed that courts and clients alike have come to expect.

The ability to communicate is especially crucial during a trial or lengthy hearing, and proceedings are expedited when attorneys are able to quickly access information or contact others. For example, it is useful to be able easily to reach witnesses to update them on adjustments to the Court’s schedule. Where proceedings require an attorney to have authority on behalf of a client – such as in the course of settlement discussions – the ability to quickly contact that client is imperative. The use of scarce pay phones with loose change or phone cards, and without contact information that most attorneys now maintain in electronic form, is at best highly inconvenient and inconsistent with the reality that so much communication now takes place electronically.

Without the use of cell phones and PDAs, and particularly their email features, attorneys who practice regularly in the courthouse are often blocked from contact with their clients, adversaries or other courts for hours at a time. This is particularly disadvantageous for small firms and solo practitioners. The inability to communicate for those hours is a serious professional problem for lawyers in all practices because of the ubiquity of electronic communications, the expectations of accessibility that have been thereby created, and lawyers’ ethical obligations to maintain communications with clients and others. In fact, most courts now require electronic filing and provide notice in electronic form. Thus, precluding attorneys from accessing their email effectively cuts them off from communications with other courts. Moreover, Assistant United States Attorneys and other government lawyers already enjoy the use of cell phones and PDAs inside the courthouse and, absent a compelling reason, we respectfully submit that their adversaries in private practice should be afforded the same privileges.

Furthermore, attorneys who are parents or caretakers for the elderly or the ill have additional burdens when they are out of contact with the outside world for extended periods. The increased number of working parents in the legal community requires reasonable accommodation. Certainly, allowing them to be contacted while in the courthouse is within reason.

In addition, we believe that the use of electronic devices inside courthouses does not heighten security concerns. Indeed, the Administrative Office of the U.S. Courts specifically found that electronic devices “do not pose a significant security risk.”3 We note that in addition to the more liberal policies of neighboring jurisdictions and many other courts, electronic devices are routinely allowed in other government buildings, and they may be carried on airplanes and other forms of public transportation every day.

Finally, to the extent that there are legitimate security and decorum concerns, we believe that the use of electronic devices inside courtrooms can and should be addressed by the presiding judge.

In order to permit a more expeditious legal process within the courthouse, we propose the following amendments to the current policy:

Attorneys should be permitted to bring and use laptops, cell phones, PDAs and other electronic devices inside the courthouses of this Court, subject to the restrictions on use set forth herein.

As a general matter, all electronic devices in the possession of attorneys must be turned off or placed in silent mode inside courtrooms. Attorneys shall not take photographs or make audio or video recordings anywhere within the courthouse. Other use of electronic devices in the courtroom shall be subject to reasonable restrictions by the presiding judge. We would hope that individual judges would freely permit attorneys to use their electronic devices in the course of a trial, hearing or other proceeding before the Court, as an aid to any presentation to the Court, or merely to allow the attorney to consult her calendar or contact list. Attorneys who use these devices improperly or fail to act in a professional way should forfeit the privilege and might be subject to sanctions.

In cases where there is a concern about surreptitious photographing or recording of sensitive court proceedings, especially where the identity of witnesses, jurors or undercover agents needs to be protected, a separate courtroom could be set up where all electronic devices are prohibited. Former Chief Judge Mukasey implemented just such a procedure in the courtroom nearest to the side entrance at 40 Foley Square for the World Trade Center bomber trials.

We understand that the Southern District is also considering the use of electronic devices by jurors, witnesses and other non-lawyers who enter the courthouse. We are mindful that such individuals have similar considerations regarding access to electronic information and the ability to communicate with the outside world. We are also of the view that there are additional concerns regarding the use of electronic devices by non-attoneys, such as jurors and witnesses, that might require a modified approach. While we have not attempted to develop a plan for such use of electronic devices herein, we would be happy to assist the Court in that regard.

The Committee on the Federal Courts appreciates the opportunity to provide comments and recommendations on the current policy and looks forward to continuing the dialogue on a subject of great interest to the bar.

New York County Lawyers’ Association

Committee on the Federal Courts

Gregg Kanter, Chair

Subcommittee on the Southern District’s PDA Policy

David Y. Loh, Chair

Thomas V. Marino, Member

Richard C. Schoenstein, Member