American Bar Association Ethics 20/20 CommissionPresentation to YLD CouncilLas Vegas, May 12, 2011Professor Paul D. Paton, Reporter

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ABA Commission on Ethics 20/20

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

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Ethics 20/20 Commission Working Groups

Conflicts of Law, Uniformity & Choice of Law

Entity Regulation/Alternative Business Structures

Outsourcing

Technology

Third Party Litigation Financing

Inbound Foreign Lawyers

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An Invitation to Take Part: Responses Sought

Commission Initial Proposals (July 15)

OutsourcingTechnology – Confidentiality Inbound Foreign Lawyers

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Outsourcing

Determine a lawyer’s ethical obligations when retaining non-firm lawyer to assist on a client’s matters

Determine a lawyer’s ethical obligations when using non-lawyer assistance outside the firm, domestically or internationally

[e.g. retention of an investigative service; hiring a company to conduct patent searches or document review; using an Internet-based service to store client information (cloud computing)]

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Technology Working Group(Confidentiality Issues)

Determine ethical obligations to protect confidential client information stored on portable devices, such as laptops, smart phones and tablets

Determine ethical obligations to protect confidential client information stored on or transmitted through third party services, such as “cloud computing” providers

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Inbound Foreign Lawyers

Given the increasingly global legal services market, should the ABA propose expanding current limited practice authorization for foreign lawyers by: Amending ABA Model Rule 5.5(d) to include foreign in-house

counsel? Including foreign lawyers within the scope of the ABA Model

Rule for Registration of In-House Counsel? Including foreign lawyers within the scope of the ABA Model

Rule on Pro Hac Vice Admission?

Is it best to merge the provisions of the ABA Model Rule for Temporary Practice by Foreign Lawyers into Rule 5.5 of the ABA Model Rules of Professional Conduct?

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An Invitation to Take Part: Responses Sought

Issues Papers (June 1)

Alternative Business Structures

Multijurisdictional Practice

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Entity Regulation/Alternative Business Structures

Issues Paper presents five alternatives, two of which the Commission eliminated in February 2011:

passive nonlawyer investment in law firms public trading of shares in law firms

Considering whether to recommend that lawyers be permitted to partner with nonlawyers under certain limited circumstances: Washington, D.C. model (nonlawyers must be an active part of

the practice, sole purpose of which is delivery of legal services) Legal Disciplinary Practices model of England and Wales (caps

on percentage of nonlawyer partners “fit-to-own” test)

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Entity Regulation/Alternative Business Structures

Key Questions:

Are there client services that U.S. lawyers and law firms should be permitted to offer, but that they currently are not permitted to offer due to restrictions contained in ABA Model Rule of Professional Conduct 5.4?

The District of Columbia’s version of 5.4 permits a lawyer to practice law in a partnership or other form of organization in which nonlawyers are actively involved in the practice (ie., are not passive investors) and hold a financial interest or have managerial authority. Should this model be adopted by the ABA? Why or why not?

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Conflicts of Interest, Uniformity & Choice of Law

How to resolve ethics issues that implicate multiple jurisdictions when the ethics rules in those jurisdictions conflict.

Determine whether lawyers should be able to obtain a license to practice in another jurisdiction more easily than the rules currently allow (Admission by Motion)

Whether to liberalize multijurisdictional practice

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Technology Working Group (Marketing Issues)

Determine ethical obligations when using Internet-based marketing tools such as websites, blogs, LinkedIn, Facebook or Twitter

Can a lawyer pay non-lawyers for Internet-based client leads? Examples include “pay-per-click” or “pay-per-lead” advertising.

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Third Party Litigation Financing

Assess ethical implications of alternative litigation financing, including effects on:

ConfidentialityProfessional independence of the lawyerConflicts of InterestFee-related issues

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Follow the Ethics 20/20 Commission’s Work, Provide Input and View Others’ Comments

http://www.americanbar.org/groups/professional_responsibility/aba_commission_on_ethics_20_20.html