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ABA’s 20/20 Commission proposes final changes

With the release of a final set of proposed changes to the Model Rules of Professional Conduct, the American Bar Association’s 20/20 Commission completed its work last month.

The group addressed major issues facing lawyers, including the maintenance of client confidences in the age of social media, the ethical obligations of legal outsourcing and the need to stay up-to-date and informed on technology.

The Commission made a series of proposals to the ABA’s House of Delegates at the 2012 Annual Meeting in August 2012 and the Mid-Year Meeting in February.

The proposals resulted in 13 changes to the Model Rules of Professional Responsibility and comments as well as four other free-standing rules, said Andrew Perlman, a reporter for the Commission and a legal ethics professor at Suffolk Law School in Boston.

“The Commission’s work really advanced the ball in giving lawyers more clarity on ethics issues in light of technology and increasing globalization,” Perlman said.

Some of the biggest changes are:

• Outsourcing

When most lawyers hear the term “outsourcing,” they think of sending work overseas. But under new comments to Rule 1.1 and 5.3, outsourcing means “any time a lawyer goes outside his or her firm for help,” Perlman said.

Examples range from the use of a cloud computing service to hiring a private investigator or engaging a contract attorney. The issue is particularly important to sole practitioners and small-firm lawyers, who often need to work with co-counsel or outsource some work, Perlman said.

The rules make clear that lawyers still have an ethical obligation to ensure that any work that is outsourced is competent and meets all professional standards, said Jamie S. Gorelick, a partner at WilmerHale in Washington, D.C. and co-chair of the Commission. “You can’t simply accept the work product of someone else.”

• Technological competence

In a revised comment to Rule 1.1, the Commission explicitly stated that lawyers must “maintain the requisite knowledge and skill [and] keep abreast of changes” related to “relevant technology.”

“This was one of the biggest changes,” said Michael P. Downey, a partner at Armstrong Teasdale in St. Louis, Mo. who focuses on ethics and professional responsibility and was also part of the Technology Working Group of the Commission.

Some lawyers are completely unaware of the risks technology poses to their practice, Gorelick said.

“Many older lawyers may not even realize they are embedding client confidences in metadata and send a document without stripping it,” she said. Such an action would “disclose a client confidence and demonstrate that [a lawyer] has not taken sufficient care to understand how to implement [his or her] obligations.”

• Duty of confidentiality

“When I started practicing law, confidential documents were put in a locked file cabinet,” Gorelick said. “Now I carry them around on my BlackBerry in my purse.”

A new rule, Rule 1.6(c), makes clear that a lawyer’s duty to protect the confidentiality of client data extends beyond the file cabinet.

According to the rule, “[a] lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”

As a practical matter, the rule may impose some costs on lawyers, Gorelick acknowledged. “Lawyers probably can’t use the cheapest form of security,” she said.

• Mobile lawyers

Lawyers changing firms face a real conundrum. To a new firm, the lawyer must state the matters he or she has worked on so that the firm can check for conflicts. At the same time, the lawyer can’t share that information as a result of the duty to maintain client confidences.

“We needed to square up these two conflicting needs,” Gorelick said, so the Commission provided guidance in Rule 1.6(b)(7) and an accompanying comment on exactly what can be disclosed to a new firm when a lawyer makes a lateral move.

“What can be disclosed is pretty narrow but the advice should be helpful to both [the new law firm] and the old firm,” she said. Specifically, the comment advises that any disclosure “should ordinarily include no more than the identity of the persons and entities involved in a matter, a brief summary of the general issues involved and information about whether the matter has terminated.”

• Advertising

The Commission faced a challenge in explaining when an attorney-client relationship is created through modern communications such as social media, Gorelick said.

With revisions to Rule 1.18, Duties to Prospective Client, and comments, the Commission tried to provide guidance on when such a relationship is created and what lawyers can do to protect themselves when engaging with potential clients online.

According to the rule, limiting the initial interview to “only such information as reasonably appears necessary for that purpose” and ensuring that advertising provides “clear and understandable warnings and cautionary statements that limit the lawyer’s obligations” will help define the boundaries of the professional relationship.

• Other Model Rules

In addition to changes to the Model Rules of Professional Conduct, the Commission also updated other Model Rules.

For example, the group created a new Model Rule on Practice Pending Admission.

The rule makes it easier for an attorney to earn a living while waiting to take the bar exam in a new state or have a motion for admission be granted, Perlman said. It does not apply to new graduates, but to a “lawyer currently holding an active license to practice law in another U.S. jurisdiction and who has been engaged in the active practice of law for three of the last five years.”

States to adopt

Now that the Commission has finished its work and the ABA has approved all of the group’s proposals, the burden falls on the states to take action.

Some states — including Delaware — have already adopted the changes proposed last August. Forty-nine states track the ABA’s Model Rules for their own professional responsibility regulations; California has its own system.

But as each state follows its own procedure for consideration and adoption of the Model Rules, the process could take two to three years in most jurisdictions, Downey said.

And by the time the states adopt the Rules, it may be time for an update.

Topics such as non-lawyer ownership of a law firm — considered by the Commission but dropped after it proved to be a highly controversial topic — and regulation of virtual practice will need to be addressed in the coming years, Perlman said.

“We will need to do something similar in another 10 years at the most,” Gorelick agreed.

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