ABA Commission on

Ethics 20/20

www.americanbar.org/Ethics2020

ABA Commission on Ethics 20/20: Studying a “New Normal”

Created in 2009 to study how rules and policies Created in 2009 to study how rules and policies concerning lawyer conduct need to be revised in concerning lawyer conduct need to be revised in light of:light of:

Changes in TechnologyChanges in Technology

GlobalizationGlobalization

Jamie S. Gorelick (Co-Chair), WilmerHale (Washington, D.C.)Michael Traynor (Co-Chair), President Emeritus, ALI (California)

Stephen Gillers, New York University Law School

Jeffrey B. Golden, London School of Economics

William C. Hubbard, Nelson Mullins Riley & Scarborough (S. Carolina)

George W. Jones, Sidley Austin (Washington, D.C.)

Justice Elizabeth B. Lacy, Virginia Supreme Court

Carolyn B. Lamm, White & Case (Washington, D.C.)

Judith A. Miller, Fmr. Chair, Section of Litigation (Washington, D.C.)

Judge Kathryn A. Oberly, District of Columbia Court of Appeals

Roberta Cooper Ramo, Modrall & Sperling (New Mexico)

Herman J. Russomanno, Russomanno & Borello (Florida)

Theodore Schneyer, University of Arizona Law School

Carole Silver, Indiana University Maurer School of Law

Frederic S. Ury, Ury & Moskow (Connecticut)

Chief Justice Gerald W. VandeWalle, North Dakota Supreme Court

Commissioners

Ethics 20/20 Commission Working Groups

Technology

Outsourcing

Conflicts of Interest, Uniformity & Choice of Law

Inbound Foreign Lawyers

Alternative Litigation Financing

Alternative Law Practice Structures

Rankings

Commission Outreach to Date

• Early release of draft proposals and revised drafts

• Hundreds of comments received on the Commission’s initial proposals and papers

• Public hearings held throughout the country

• 75+ presentations to ABA entities as well as state, local, specialty, and international bar associations 

Timeline for Commission Proposals

August 2012

•Technology (confidentiality)

•Technology (marketing)

•Outsourcing

•Mobility Issues(admission in new jurisdictions, conflicts screening for laterals)

February 2013

•Conflicts-related choice of law issues

•Alternative Law Practice Structures (including choice of law issues)

•Inbound Foreign Lawyers

Technology Working Group

Two Sub-Committees

Confidentiality Issues

Client Development Issues

The Past: Protecting Client Information

Technology Working Group (Confidentiality)

The Reality: Protecting Client Information

Technology Working Group (Confidentiality)

Proposal to Amend Model Rule 1.6 (Duty of Confidentiality)

(c) A lawyer shall make reasonable efforts to prevent the unintended disclosure of, or unauthorized access to, information relating to the representation of a client.

Factors to be considered in determining the reasonableness of the lawyer’s efforts:

• The sensitivity of the information

• The likelihood of disclosure if additional safeguards are not employed

• The cost of employing additional safeguards

• The difficulty of implementing the safeguards

• The extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software

excessively difficult to use)

Other Key Commission Proposals in this Area

•Creation of a user-friendly ABA website with answers to common questions

•Amendment to Comment [6] to Model Rule 1.1 (Competence). Competence requires a lawyer to stay abreast of the “benefits and risks associated with technology”

Other Key Commission Proposals in this Area

• Amendment to Comment [4] to Model Rule 1.4 (Communication), telling lawyers that they need to respond promptly to “client communications” and not just “telephone calls.”

• Amendments to Model Rule 4.4(b) (receipt of misdirected documents) to clarify that a lawyer’s duty to notify the sender of a mistake arises for both documents as well as “electronically stored information” (including electronic metadata).

The Past

Technology (Client Development)

Blogs

Pop-up Ads

Websites

The Present

Technology (Client Development)

Amendments to Model Rule 1.18 (Prospective Clients)

Amendments to Comment [5] to Model Rule 7.2 (Advertisements)

“A communication contains a recommendation if it endorses or vouches for a lawyer’s credentials, abilities, competence, character, or other professional qualities.”

Amendments to Model Rule 7.3 (Solicitations)

“A solicitation is a targeted communication initiated by the lawyer that is directed to a specific potential client and that offers to provide, or can reasonably be understood as offering to provide, legal services.”

“In contrast, a lawyer’s communication typically does not constitute a solicitation if it is directed to the general public . . . or if it is in response to a request for information or is automatically generated in response to Internet searches.”

Outsourcing

Amendments to Model Rule 1.1 (Competence) that identify the relevant factors to consider when outsourcing work to lawyers outside the firm

Amendments to Model Rule 5.3 that identify the relevant factors to consider when outsourcing work to nonlawyers outside the firm

Mobility Issues

Amendments to Model Rule 1.6 (Duty of Confidentiality) 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.

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)

Amendments to the 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

Alternative Legal Practice Structures

Issues Paper (April 2011) –

• Global and domestic scan of legal practice environments in which U.S. lawyers and law firms are working, including District of Columbia, England and Australia.

• Five options distilled

Commission determined NOT to proceed with:

• Publicly traded law firms;• Passive, outside nonlawyer investment in law firms• Multidisciplinary practice

Alternative Legal Practice Structures

Discussion Draft (December 2011)

Recommends adoption of modified version of District of Columbia Model Rule 5.4 in place for over 21 years:

• Permits limited nonlawyer ownership in law firms BUT• Such law firms restricted to providing legal services• Nonlawyers must be active in the firm, providing services

supporting the delivery of legal services by the lawyers (i.e. no MDP)

• Nonlawyer ownership and voting interests restricted by percentage cap to ensure lawyers retain control

• Nonlawyers agree to conduct themselves in accordance with lawyer Rules of Professional Conduct

• Lawyer owners responsible for ensuring nonlawyer owners are of good character

Alternative Legal Practice Structures

Next Steps:

• Comment Period for Discussion Draft Closes February 29, 2012

• Analysis of Comments and responses by ALPS Working Group

• YLD presentation to Commission in April 2012

• Additional YLD survey (to supplement ALPS webinar July 2011 and summer 2011 YLD survey on ALPS issues – limited survey sample)

• Proposal for broad survey of GP Solo membership

Timeline for Commission Proposals

August 2012

•Technology (confidentiality)

•Technology (marketing)

•Outsourcing

•Mobility Issues(admission in new jurisdictions, conflicts screening for laterals)

February 2013

•Conflicts-related choice of law issues

•Alternative Law Practice Structures (including choice of law issues)

•Inbound Foreign Lawyers

ABA Commission on

Ethics 20/20

www.americanbar.org/Ethics2020

Comments? Contact:

Andrew Perlman, Chief Reporter, aperlman@suffolk.edu

Paul D. Paton, Reporter, ppaton@pacific.edu