By: John Fulmer//June 9, 2010
By: John Fulmer//June 9, 2010//
Lawyers arguing federal cases can soon get an ID for their PED.
That will give them the opportunity to bring their cell phones or other personal electronic devices into court as long as it’s turned off or on vibrate mode, which U.S. District Court, Western District of New York Chief Judge William M. Skretny called “a baby-step” toward updating policy on newer technology.
A general order issued by Judge Skretny states that court-issued ID cards will be required for attorneys to bring PEDs — defined as “any cellular telephone, Palm Pilot, iPhone … and any other comparable device” — into the courthouse.
At least most of the time.
Judge Skretny told The Daily Record on Wednesday that the district’s previous, unwritten policy prohibited cell phone use in courtrooms. He said the written order, which goes into effect June 15, still has an opt-out policy and that individual judges can decide policy for their own courtroom.
An announcement of Judge Skretny’s order, on the court’s website, also states that PEDs will not be allowed whatsoever in Judge Richard J. Arcara’s courtroom “notwithstanding the General Order.” An employee in Judge Arcara’s office said the judge is out of town and could not be reached for comment.
“Any judge can opt out,” Judge Skretny said. “It’s up to the individual, and Judge Arcara has expressed his intention to do so.”
Judge Skretny called it “a more permissive” and “more receptive” policy. To his recollection, the only federal courts that still prohibit PEDs outright are in Vermont.
“Frankly,” he said, “the general order is consistent with policy throughout the country.”
Judge Skretny’s order specifies “that members of the Bar permitted to bring their Personal Electronic Devices into the courthouse must ensure that such Devices are turned off beyond the first floor lobby of the courthouse or court facility and may not turn them on or use them beyond the first floor lobby for any reason without the express permission of the presiding judge, magistrate judge or bankruptcy judge. Court officials may use their Personal Electronic Devices anywhere in the courthouse when engaged in the conduct of court business, except such devices shall be turned off or placed on vibrate mode while in any courtroom.”
Judge Arcara’s decision to opt out, however, had a couple of area lawyers bemused, and confused — and also a little miffed as they considered the inconvenience of having their cell phones banished and BlackBerrys banned.
James Harrington, of Harrington & Mahoney in Buffalo, said he had no quarrel as to how judges deal with cell phone use inside of their courtrooms, but an outright ban was an instance of “form over substance.”
Nearly everybody today — not just lawyers — depends on mobile communication, he said and that’s a fact of modern life. Clients expect to be in contact with their lawyers 24-7, whether they are in court or in the office.
“People are dependent on their cell phones,” he said. “It’s a case where the court is gradually trying to keep up with technology.”
Harrington wondered if there are three different courtrooms on one floor, whose cell phone policy would be in effect? He’s been told he will be able to use a payphone, but if he could find one — they’re as rare as hen’s teeth nowadays — there’s likely to be a long line of antsy lawyers queued up to use it.
Harrington said Judge Arcara has been adamant about cell phone use in his court and he called the judge a stickler for decorum. Judge Arcara, he said, is overreacting, but in no way as rashly as the now-notorious Niagara Falls City Court Judge Robert Restaino, whom according to former Commission on Judicial Conduct Chairman Raoul Felder “snapped” and “engaged in what can only be described as two hours of inexplicable madness” during a March 2005 session in his court, according to a commission report on the matter.
As The Associated Press reported at the time, Restaino “jailed 46 people who were in his courtroom when a cell phone call interrupted proceedings.”
No one would fess up to receiving the call, which prompted the judge’s blown fuse. A sign in the courthouse warned that cell phones and pagers must be turned off; nonetheless, the commission removed Judge Restaino from the bench.
Just plain rude
Donald Thompson, of Easton Thompson Kasperek Shiffrin, said there is some irony involved in Judge Arcara’s new cell phone rule. Both he and Harrington said the possibility exists that phones could be misused — such as lawyers texting during trial — and a ringing cell phone in court is rude in anybody’s book, but Thompson and Harrington said judges now expect attorneys to make quick calendar recalibrations at the bench. The problem is that most attorneys keep their calendars on their iPhone or BlackBerry.
Attorneys who appear in federal court can apply for ID cards from 9 a.m. to 4 p.m. daily at the Buffalo and Rochester courthouses, beginning June 15. An application form is available on the court’s website at www.nywd.uscourts.gov