The ABA Commission on Ethics 20/20 has released resolutions and reports to be submitted to the House of Delegates at the upcoming ABA annual meeting scheduled in August concerning recommendations and changes to the ABA Model Rules of Professional Conduct. An overview of these resolutions and reports can be found on the American Bar Association site.
While each state has is own set of Rules, many states follow the ABA's lead, and craft their rules based on the ABA Model Rules. As always, I recommend that you review the rules in your own jurisdiction as well as reviewing the ABA Model Rules and comments.
The Commission did make several recommendations, some of which are highlighted below, but they did not recommend a complete overhaul or substantial changes to the Rules.
One of the main areas addressed by the Ethics 20/20 Commission was the effect of technology on legal ethics, and the need for some clarification (and in some cases, slight expansion) of the Model Rules with regard to new technologies. The Commission noted that technology has changed the way lawyers communicate with clients, the manner in which clients find a lawyer, how discovery and investigations are conducted, and how legal services are provided. Electronic communication and mobility also affect client confidentiality.
The report makes it clear that lawyers must be up to date on technology in order to serve their clients well and to comply with their ethical obligations.
The Commission's proposals include:
Expansion of Model Rule 1.6 (Confidentiality of Information), identifying various factors lawyers should use to determine whether the measures they are taking to protect a client’s confidential information from inadvertent disclosure, unauthorized disclosure, and unauthorized access - regardless of the medium used - are reasonable.
That the ABA create and maintain a regularly updated user-friendly website to provide more specific and timely guidance regarding lawyers’ use of commonly encountered technology
An amendment to Model Rule 1.1 (Competence) to explicitly include the phrase, "including the benefits and risks associated with relevant technology” as part of a lawyer's obligation to remain competent
An update to Model Rule 4.4 (Respect for Rights of Third Persons) regarding notification of receipt of electronic material (including emails and metadata contained within electronic documents) which was inadvertently sent
Change to comment 4 to Rule 1.4 (Communications) indicating that lawyers should not only promptly respond to client telephone calls, but should promptly respond to client communications of any type.
Amendments to Model Rule 1.18 (Duties to Prospective Client) and its Comments, including a new Comment to "help lawyers identify the precautions that they should take to prevent the inadvertent creation of a prospective client-lawyer relationship in a digital age and help the public understand the consequences of communicating electronically with a lawyer."
An update to Model Rule 7.2 (Advertising) to clarify obligations with regard to pay per click and pay per lead advertising and sharing fees with non-lawyers.
Amendments to Model Rule 7.3 (Direct Contact with Prospective Clients) to provide guidance about when a lawyer's online communications rise to the level of "solicitations."
You can read the Commissions resolutions regarding technology and confidentiality here.
Globalization and Cross-Jurisdictional Practice
One of the results of new technology is globalization of the legal marketplace; the Commission notes that clients increasingly expect their lawyers to be able to practice in multiple jurisdictions, and the economy has forced many lawyers to relocate. These changes can create ethical issues for lawyers as well.
The Commission has recommendations related to these issues, including:
Changes to the Model Rules (and the addition of a new rule) regarding practice in a new jurisdiction.
Changes to Comments for Rules 1.1 (Competence), 5.3 (Responsibilities Regarding Nonlawyer Assistants) and 5.5 (Unauthorized Practice of Law; Multijurisdictional Practice)to give further guidance about the use of lawyers or non-lawyers from outside the firm to assist on a client's matter.
The Commission is still working on a report regarding alternative law firm structures.
To learn more, read this article in this month's ABA Journal.