Ethics 20/20 proposals to revise Model Rules now available for comment
The Commission on Ethics 20/20 last month made public for comment initial proposals on three topics—outsourcing, lawyers’ use of technology and in-bound foreign lawyers—that recommend amendments to the ABA Rules of Professional Conduct and other association policies.
The proposals follow broad feedback obtained by the commission over the past year, since Immediate Past-President Carolyn B. Lamm formed the group in August 2009 to examine the impact of technology and increasing globalization on the legal profession.
“The commission’s proposals are grounded in the core values of the legal profession and reflect an effort to explain how those core values apply to modern law practice,” said commission co-chairs Jamie S. Gorelick and Michael Traynor.
“The commissions proposals are grounded in the core values of the legal profession and reflect an effort to explain how those core values apply to modern law practice, which is increasingly driven by technology and globalization,” said commission co-chairs Jamie S. Gorelick and Michael Traynor in a memo .
“In this regard, the commission’s proposals are more evolutionary than revolutionary.”
Regarding outsourcing, the commission proposes amendments to the Comments to Model Rules of Professional Conduct 1.1 (Competence), 5.3 (Responsibilities Regarding Nonlawyer Assistants; [also includes a small black letter change]) and 5.5 (Unauthorized Practice of Law; Multijurisdictional Practice).
“Like it or not, outsourcing is a reality, and it takes many forms,” said Gorelick, emphasizing that the commission is not judging whether outsourcing is good or bad.
“Our job is to help lawyers navigate through the challenges this presents in a manner consistent with the core values of the legal profession,” explained Traynor.
Specifically, the outsourcing recommendations would remind lawyers in Model Rule comments that before retaining a lawyer outside the firm to provide legal services on behalf of a client, they ordinarily must obtain informed client consent and reasonably conclude that those services will contribute to the competent and ethical representation of the client. Those lawyers should also make every effort to establish procedures to ensure that nonlawyers to whom work is outsourced act in ways that are compatible with the Model Rules and with the professional obligations of the lawyer. The recommendations also suggest that the lawyer make reasonable provisions for supervision of nonlawyer client work, in consultation with the client.
On the topic of lawyers’ use of technology, Gorelick explained that the commission’s recommendations stem from the challenges lawyers face protecting client confidences when using technology, including cloud computing.
The commission proposes adding a new paragraph to Model Rule 1.6 (Confidentiality of Information) that would require lawyers to make reasonable efforts to prevent the inadvertent disclosure of, and unauthorized access to, confidential client information. Another recommendation would emphasize a lawyer’s duty to remain aware of the risks and benefits of technology, while a third proposal concerns the inadvertent transmission of information, clarifying a lawyer’s duty to notify the sender.
The commission’s recommendations around foreign lawyers providing legal services in the United States focus on three related areas. First, the commission proposes to extend the registration of in-house counsel rule to include lawyers from foreign jurisdictions. Second, the commission recommends permitting foreign lawyers to apply to provide legal services on a pro hac vice basis, working with local counsel. Finally, the commission proposes to merge into Model Rule 5.5 the already existing provisions of the Model Rule for Temporary Practice by Foreign Lawyers to elevate the profile of the authorization.
Following comments from the public, the three proposals may undergo further revision before being presented to the association’s policy-making House of Delegates for consideration at the 2012 ABA Annual Meeting in Chicago.