Legal Ethics Forum: Review of Ethics 20/20 Proposals

Legal Ethics Forum: Review of Ethics 20/20 Proposals

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February 27, 2012
Review of Ethics 20/20 Proposals

I have been fortunate to serve as the chief reporter for the ABA Commission on Ethics 20/20. In that role, I have had the privilege of working with an extraordinary group of lawyers, judges, and academics (including co-blogger and Commissioner, Stephen Gillers) who have thought deeply about the profession’s future and how the rules governing lawyer conduct should be revised in light of globalization and the profession’s increasing reliance on technology.

The Commission's process has been thorough and collaborative. Many segments of the bar and the public have responded to the Commission's work and commented on early drafts of the Commission's proposals. This highly deliberative process has produced nearly final proposals relating to a number of topics that the Commission expects the ABA House of Delegates to consider this August. (The Commission may submit additional proposals for the House's consideration next February. See here for a description of topics that could be the subject of additional Commission action.)

Now that a slate of proposals is far along (but not yet final), I thought it might be useful to provide an overview of what those proposals are intended to accomplish. Calling this overview of the Commission’s work a “symposium” overstates what I’d like to do. Basically, by drawing verbatim from the Commission's reports, I want to describe each proposal and its purpose through a series of blog posts. A mini-symposium, if you will.

My hope is that these posts will be helpful to those of you who have not followed the Commission’s work closely. But I also hope to benefit as well. The Commission will be meeting in early April to finalize the proposals referenced below, and I would value feedback on what the Commission has produced. If you think that a particular proposal is useful, please say so in the comments. If you think a particular proposal is problematic, explain how you would propose to address the problem that you identify (or better yet, send an email to the Commission). The more specific you are, the more helpful it will be to the Commission.

The headers below contain links to the Commission’s draft resolutions and reports, where you can find a more detailed explanation for each proposal. The links underneath the headers will take you to blog posts that show the proposed changes in redline form (relative to the existing Rule) and quote the Commission's explanations for the proposed changes.

Technology and Confidentiality

Amendments to Rule 1.0 (Terminology) to elaborate on the definition of a “screen” in order to emphasize the importance of taking appropriate precautions regarding electronically stored information.

Amendments to Model Rule 1.1 (Competence) to emphasize that a lawyer has a duty to keep abreast of changes in technology, including the benefits and risks associated with its use.

Amendments to Model Rule 1.4 (Communication) to update existing Comment language that refers to the duty to respond promptly to client telephone calls.

Amendments to Model Rule 1.6 (Duty of Confidentiality) to address a lawyer’s ethical obligations to protect a client’s confidences from inadvertent and unauthorized disclosures as well as from unauthorized access.

Amendments to Model Rule 4.4 (Respect for Rights of Third Persons) to clarify a lawyer’s obligations upon receiving inadvertently disclosed confidential information in electronic form.

Technology and Client Development

Amendments to Model Rule 1.18 (Duties to Prospective Client) to clarify the definition of a prospective client so that lawyers can better understand the implications of the Rule given the various new ways in which lawyer and clients communicate.

Amendments to Model Rule 7.2 (Advertising) to address how the prohibition against paying others for a “recommendation” applies to Internet-based client development tools.

Amendments to Model Rule 7.3 (Direct Contact with Prospective Clients) to clarify when a lawyer’s online communications constitute “solicitations” that are governed by the Rule.

Outsourcing

Amendments to Model Rule 1.1 (Competence) to clarify that lawyers have an obligation under the Rule to make reasonable efforts to ensure that the work outsourced to lawyers is performed competently and contributes to the overall competent and ethical representation of the client. A new Comment identifies the relevant factors to consider when assessing whether those efforts have been reasonable.

Amendments to Model Rule 5.3 (Responsibilities Regarding Nonlawyer Assistants) to underscore that lawyers should make reasonable efforts to ensure that nonlawyers outside the firm provide their services in a manner that is compatible with the lawyer’s own professional obligations, including the lawyer’s obligation to protect client information. The changes also alert lawyers that they have an obligation to give appropriate instructions to nonlawyers outside the firm when retaining or directing those nonlawyers.

Mobility Issues (here, here, and here)

Amendments to Model Rule 1.6 (Confidentiality of Information) that explain the ethical considerations associated with the disclosure of confidential client information to detect and prevent conflicts of interest, such as when lawyers move to another firm or when firms merge.

Amendments to Model Rule 1.17 (Sale of Law Practice) to clarify the information that can be disclosed to the potential purchaser of a law practice in light of the proposed changes to Rule 1.6

A new Model Court Rule on Practice Pending Admission that would enable a lawyer licensed in one jurisdiction to establish a systematic and continuous presence in a new jurisdiction while diligently pursuing admission in the new jurisdiction through one of the procedures that the jurisdiction authorizes (e.g., admission by motion or passage of that jurisdiction’s bar examination)

Amendments to Model Rule 5.5 (Multijurisdicitonal Practice of Law) to offer more guidance on when a virtual practice could give rise to the establishment of an office in another jurisdiction

Amendments to the ABA Model Rule on Admission by Motion that would reduce the time in practice requirement from 5 years to 3 years and a resolution urging jurisdictions that have not adopted this Model Rule to do so without additional restrictions, such as reciprocity requirements



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