When in law school, many of today’s lawyers couldn’t have imagined the impact of e-mail and the ability to com-municate instantaneously through something called the Internet.
Technological advances—coming almost daily and moving far beyond e-mail—together with the globalization of the practice of law have led to a review of lawyer ethics rules and regulations through a new American Bar Associa-tion commission.
ABA President Carolyn B. Lamm created the Commission on Ethics 20/20 to study the issues with the clarity of 20/20 vision.
“This effort is fundamental to the future of our profession, our association, and the protection of the public,” Lamm says. “I recognized that the speed at which technological advances and globalization continue requires thoughtful action and leadership by the association.”
The commission’s work will be guided by three principles: protecting the public; preserving the profession’s core values; and maintaining a strong, independent, and self-regulating legal profession.
The ABA last reviewed the Model Rules of Professional Conduct through its Ethics 2000 Commission back in 1997 “on the cusp of the wave of technology and globalization,” Lamm notes.
Since that time, law firms in the United States have worked to increase their access to the legal services markets of other countries, and lawyers in other countries have tried to gain more access to the U.S. market.
“Technology is having a profound effect on how we practice,” Lamm says. “It enables a lawyer in one jurisdic-tion to be virtually present in another, allows documents to be sent and stored in a way that may challenge our pro-fessional obligations to maintain client confidences, and, in so many ways, it challenges our ‘place-based’ system of lawyer regulation.”
Frederic S. Ury, past president of the Connecticut Bar Association and a member of the commission, says it’s not just large firms doing business overseas. For example, even lawyers at small U.S. firms are using technology to practice globally or to outsource some of their work to India or other countries.
“[The work] can be done overnight, while American lawyers are sleeping, and then be e-mailed back to them the next morning,” he explains. “This new global economy can’t be ignored.”
The recently passed Legal Services Act 2007 allows nonlawyers in England and Wales to own part of a law firm, something that was soundly rejected by the ABA House of Delegates back in 2000. And in Australia, law firms are even being publicly traded on the stock exchange.
“Those are things that need to be looked at and considered,” Ury says. “Whether it makes sense for us, I don’t know yet. It’s certainly different.”
Seeking input from bar leaders
Commission co-chair Jamie S. Gorelick, a past president of the District of Columbia Bar, says bar leaders will have many opportunities, including at public hearings and roundtables, to share their thoughts during the process.
“Input from the leaders and membership of state, local, specialty, and international bar associations is crucial,” she says, adding that outreach is a priority. “We recognize the importance of their involvement in framing and dis-cussing the issues, and in helping the commission to fashion policy recommendations.”
The process will be transparent and interactive, Gorelick says, noting that the commission is working with the ABA Division for Bar Services and the leadership of the National Conference of Bar Presidents regarding outreach and opportunities for dialogue.
Those interested in the topic can keep up with developments on the commission’s Web site at www.abanet.org/ethics2020, where they can also sign up for a related online discussion group.
Commission co-chair Michael Traynor, past president of the American Law Institute, says the 15-member group expects to take three years to look at the issues and make recommendations.
“The first year will consist of research and broad outreach and analysis of information regarding the critical is-sues identified,” Traynor says. Year two will focus on developing policies, principles, and perhaps model rules that will be circulated widely for comment. During year three, the proposals will continue to be vetted and will be pre-sented to the ABA House of Delegates.
Given the three-year process, Lamm enlisted the support of the next two ABA presidents—Stephen N. Zack and William T. Robinson III. “My successors and I are of one mind regarding the importance of this project for the fu-ture of the profession, clients, and the public,” she notes.
Says Zack, “I told her I would gladly carry it on. The world has changed a lot since our last review of ethics. The fundamentals of right and wrong haven’t changed, but we have to evaluate what technology has brought.”
It may be necessary for all bar leaders to look into the future. Zack says he heard at a conference that 50 percent of the tools attorneys will be using within the next few years haven’t even been invented yet. “Look at the Black-Berry—we had no idea of that a short time ago,” he says. “We have to look into a crystal ball and try to plan for it as well as keep up with what’s happening today.”
Zack echoes Gorelick’s call for involvement among bar leaders throughout the Ethics 20/20 process. “In order to be successful, the recommendations must be based on real-world applications,” he says. “Bar leaders are the best people to look at that and to see how it’s all going to affect the average practicing lawyer.”
GATS: A key consideration
The commission is also closely watching certain trade agreements, including GATS, the General Agreement on Trade in Services. It’s the first multilateral trade agreement that applies to services, including legal ser-vices. Negotiations are ongoing and conducted under the auspices of the World Trade Organization while the United States Trade Representative negotiates on behalf of the United States.
The potential ramifications regarding how the practice of law may be conducted and regulated in the future are great, Lamm says. “Adopted WTO disciplines could apply to certain U.S. state legal education requirements, bar admissions and licensing requirements and procedures, ethics, and disciplinary enforcement rules that are now, and historically have been, subject to adoption and enforcement by the U.S. jurisdictions’ highest courts of appellate jurisdiction,” she explains.
The ABA Task Force on International Trade in Legal Services is responsible for monitoring the GATS negotia-tions and for providing information to the USTR. Because GATS is relevant to the work of the Commission on Eth-ics 20/20, Lamm has appointed Robert E. Lutz II, a professor at Southwestern Law School in Los Angeles, as liaison from the task force to the commission, she notes.
“Further, I have increased the size of the task force to include representatives of the National Conference of Bar Presidents and state bar presidents,” she adds.
Ury commends Lamm for initiating the careful consideration of global changes in the legal profession. “We have got to begin the process,” he says. “Things are constantly changing, so there is no sense in waiting.
“I hope we can come up with rules flexible enough to give room for changes that we don’t even know about. I think the rules will have to be general.”
Facilitating global practice
Ury says he understands the concerns that American lawyers and bar leaders may have about the global changes, and he hasn’t heard of any of them putting their head in the sand. “You can’t hide,” he says. “The globalization train has left the station.”
Legal services from American lawyers, especially transactional attorneys, are in demand around the world, Ury notes, adding, “We have a lot of good things to export.”
To facilitate this global practice, Ury says, the commission needs to help figure out how American lawyers can deal with different laws in different countries and make sure they aren’t violating rules.
“After three years,” Ury says, “I would be happy if the commission has looked at all these rules and things going on around the world, and has come up with a methodology that will allow our lawyers to operate competitively with our brethren around the world without changing the core principles that make lawyers so precious—confidentiality and independence.”
The commission first met in September; the next meeting and public hearing is scheduled for Feb. 4-5 at the ABA Midyear Meeting in Orlando. There will also be a meeting in Washington, D.C., in April and another in San Francisco in August. Those with inquiries, information, or opinions may contact the commission by e-mail at email@example.com.