American Bar Association: New ethics proposals would facilitate cross-border practice

Listen to this article

By Pat Murphy
Dolan Newswires

BOSTON, MA — An American Bar Association ethics panel has proposed rule changes that would make it easier for lawyers to engage in cross-border practice, while making clear that one’s “virtual presence” in another jurisdiction may trigger a rule violation.

The changes are intended to address ethical problems “arising from the globalization of law practice and the proliferation of new technologies, including issues related to cross-border practice, lawyer mobility and inconsistencies in jurisdictions’ rules of professional conduct,” the ABA Commission on Ethics 20/20 explained in a cover letter announcing the new proposals.

The commission’s proposals target ABA Model Rules addressing multijurisdictional practice, client confidentiality, conflicts of interest and admission by motion.

The panel proposed two amendments to Model Rule 5.5, which addresses multijurisdictional practice and the unauthorized practice of law. The first amendment would create a new Rule 5.5(d)(3) that would allow lawyers qualified to practice in one jurisdiction to practice in a new jurisdiction while they diligently pursue admission through the new jurisdiction’s authorized procedures.

The second change to the rule addresses a lawyer’s “virtual presence” in another jurisdiction. Rule 5.5(b)(1) prohibits lawyers from establishing “an office or other systematic and continuous presence” in a jurisdiction unless the lawyer is authorized to practice law in that jurisdiction.

In light of technological advances in legal marketing, the commission proposed changing language in the comment accompanying the rule to make clear that “a lawyer may have a systematic and continuous presence in a jurisdiction if the lawyer directs electronic or other forms of advertising to clients in the jurisdiction with the intent of representing those clients and establishing a substantial practice in the jurisdiction.”

On this point, the commission emphasized that  “lawyers who practice virtually must comply with the same restrictions as lawyers who have more traditional law offices, and the commission’s proposal is intended to make this point more explicitly while offering lawyers more guidance as to the Rule’s application to these newer forms of law practice.”

Another proposed amendment would add a comment to Model Rule 1.6 clarifying the extent to which a lawyer moving to a new firm may disclose confidential information about current and former clients for the purpose of identifying possible conflicts of interest.

A third proposal adds a comment to Model Rule 1.7 that would expressly allow attorneys and clients to agree that their relationship will be governed by a particular jurisdiction’s conflict of interest rules.
One final commission proposal would amend the ABA Model Rule for Admission by Motion to enable lawyers to qualify for such admission after three years of active practice instead of five.

The commission is accepting comments on the proposed amendments until Nov. 30, 2011.

Comments may be submitted to Natalia Vera at [email protected].