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ABA’s Commission on Ethics Submits Proposed Rule Changes

The American Bar Association’s Commission on Ethics 20/20 recently delivered a report to ABA’s House of Delegates. The Commission was created to study “the impact of technology and globalization on the practice of law and the structure for regulating U.S. lawyers.” With the ever-increasing optimization of technology in the workplace making a communication between professionals that reside tens of thousands of miles away a simple task, the physical distances in the world in which we work has virtually shrunk. The ABA is attempting to get out ahead of the curve by addressing the ethical impact of technology and globalization. This was clearly a daunting task for the Commission to consider, evidenced by the fact that it has been debating rule changes since its creation in 2009.

The over-riding focus on the rule changes, as is always the case, is how to best ensure client confidentiality and cement best practices for cost-effectively advising clients

The report submitted by the Commission addresses a number of issues covering lawyer mobility, legal process outsourcing and maintaining client confidences. In the summary report to the House, the proposed resolutions are said to be a response to two key trends:

  1.  “Technology has irrevocably changed and continues to alter the practice of law in fundamental ways. Legal work can be, and is, more easily disaggregated; business development can be done with new tools; and new processes facilitate legal work and communication with clients. Lawyers must understand technology in order to provide clients with the competent and cost-effective services that they expect and deserve.”
  2.  “Coupled with technology, globalization continues to transform the legal marketplace, with more clients confronting legal problems that cross jurisdictional lines and more lawyers needing to respond to those client needs by crossing borders (including virtually) and relocating to new jurisdictions.”

Simply put, a lawyer in today’s world needs to fully utilize the technology at her fingertips to cost-effectively service a client’s need and also needs to be able to quickly react to client issues in multiple jurisdictions. While these are not altogether recent changes in the practice of law, the ABA has been fairly forward thinking in trying to presently address them.

The Commission is not intending to present a uniform, nationally adopted ethics code, but instead aims to address concerns in the ABA’s traditional manner of recommending changes which each state can choose whether or not to adopt. Among those proposed resolutions are rules addressing technology and confidentiality, the outsourcing of legal work, and rules on lawyer mobility.

The proposed rules on technology address how information should be stored and sent, especially when it pertains to client confidentiality. In addition, the rules outline what one must do with materials that are inadvertently sent or received. The rules changes on outsourcing focus primarily on the work performed by nonlawyers or non-firm firms (NFFs). We’ve talked at length about best practices and ethical duties for law firms that use NFFs on our site. The rule changes look to further clarify those ethical obligations. Finally, the Commission attempts to solidify obligations when a lawyer attempts to gain admission to a new jurisdiction or considers changing firms.

The over-riding focus on the rule changes, as is always the case, is how to best ensure client confidentiality and cement best practices for cost-effectively advising clients. The House of Delegates now has a few months to fully consider the rule changes before they vote on them August 8 at the ABA’s 2012 Annual Meeting. This certainly won’t solve all the problems as technological advances continue to improve attorney preparations and legal services become more global, a fact that isn’t lost on the Commission, and they intend to submit further recommendations in February 2013. However, it is a start. Clients are demanding improved practices from attorneys as the increase of technological advances continues to shrink the world in which we operate. It’s beneficial to have more definitive ethical guidelines on how to best serve our clients.