The ABA adopted the Model Rules of Professional Conduct in 1983. Nearly four decades later, the Model Rules remain essentially unchanged, with virtually no acknowledgment of how technology has impacted lawyers and law firms, except for limited amendments approved in 2012 and 2013.
The practice of law has changed dramatically, however, in large part because of technology, and it is time for the Model Rules to catch up. Think about it. Lawyers depend on technology for virtually everything they do, and firms need to consider technology in everything from hiring to management to ethics. Consider the following examples.
Imagine you are an attorney licensed in Texas who lives in Pennsylvania and provides legal advice solely to Texas-based clients. Or perhaps you are an attorney licensed in New Jersey who has been handling client matters from your Delaware residence because of the pandemic. Or vice versa. Are you permit- ted to practice from locations where you are not licensed? Or are you committing the unauthorized practice of law?
Or perhaps you are an attorney licensed in Pennsylvania with a Pennsylvania-based business client that is completing a transaction in California that will be subject to and interpreted under California law. Are you permitted to provide advice from Pennsylvania on the California transaction?
What if your firm does not digitize all its client and other files, and the building where your office is located burns down, and your files and other records, including your IOLTA account records, are not recoverable? Have you committed an ethical violation because you failed to scan and electronically save every office document?
The scenarios are seemingly endless, but all have a common thread. Technology, or the impact of technology on the practice of law, and the accompanying problem that the Model Rules of Professional Conduct do not directly address technology. Instead, lawyers are left with geography-based Model Rules while practicing in a technology-based world.
Nothing highlights this issue more than the concerns of countless lawyers nationwide who found themselves quarantined—and practicing—in locations where they were not licensed. To assuage these and related concerns, in December 2020, roughly nine months after law firm physical offices were shuttered because of COVID-19, the ABA Standing Committee on Ethics and Professional Responsibility released Formal Opinion 495, which explains that attorneys may work remotely in states where they do not have law licenses, providing they do not hold themselves out as being licensed to practice there or advertise that they are licensed to practice in that state.
Everyone, or virtually everyone, agrees with this conclusion and those in similar opinions from numerous state and local bar association ethics committees. But while the opinion may make lawyers feel better, it ignores the fact that each lawyer to whom the opinion applies was and may still be practicing law in a jurisdiction where he or she is not licensed. In many juris- dictions, that conduct is the unauthorized practice of law. Even though virtually everyone agrees “it is not.”
While disciplinary prosecution is unlikely for lawyers practicing remotely during the pandemic, remote practice is here to stay, and the questions raised at the start of the column remain unanswered. Many states answer those questions differently. Why? Because the Model Rules of Professional Conduct do not address technology-based practice and the issues that arise under it.
There is a solution. The Model Rules should be revised to acknowledge that technology is a part of every attorney’s practice, more so at times than geography. It is not in the interest of lawyers and their firms to continue to ignore the reality lawyers confront and instead accept the “wink wink” approach that underlies Opinion 495 and the other ethical guidance addressing the same or similar topics.
Let’s look at the Model Rules to see some of the problems.
The first problem is that the word “technology” does not appear in the Model Rules. Anywhere. Yes, a handful of comments mention “technology,” such as the definition of “competence,” but the word itself remains noticeably absent in the Model Rules.
Comments are not part of the Model Rules and are not a basis for discipline. The Preamble highlights this distinction in Comment 14, which explains that “Comments do not add obligations to the Rules but provide guidance for practicing in compliance with the Rules.” In other words, even the much-ballyhooed Comment 8 (“Maintaining Competence”) to Model Rule 1.1 is at best guidance. And that is the Comment that includes the statement that, “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”
Even the word “electronic,” often a euphemism for technology, only appears five times, each time in the context of electronic communication or electronically stored information. But in a world where law firms, like every other business that stores confidential or sensitive information, have an obligation to protect against cyberattacks and other such threats, the Model Rules are silent.
For Luddites who refuse to acknowledge how critical technology is to all aspects of legal practice and practice management, this absence remains a crucial justification for why they can ignore the impact of technology on their practices. It also highlights why Comment 8 is essentially toothless.
While using competence as a vehicle for reminding lawyers of the importance of technology, by itself, it is not sufficient. Thus, Model Rule 1.1, and others, need revisions.
For example, the definition of “writing” in Model Rule 1.0(n) acknowledges “electronic” records but fails to distinguish, for example, between email and traditional mail, although the differences are significant. Consider the substantial differences between a carbon copy and a blind carbon copy of a printed letter compared with a cc or bcc of an email. The propriety of including a client on an email with opposing counsel is the subject of numerous ethics opinions, with conflicting conclusions. Yet the Model Rules are silent on this subject.
Model Rule 1.3 (“Diligence”) requires attorneys to “act with reasonable diligence and promptness,” and Model Rule 1.4 (“Communication”) requires attorneys to “promptly inform” clients. Has that obligation changed? Is reasonable promptness different in a world where attorneys and clients often communicate by email and text message, where the expectation of an immediate reply is greater? While lawyers can educate clients about how and at what frequency they respond, there is no guidance in the Model Rules.
Confidentiality of information under Model Rule 1.6 carries new meaning since the rules were created and since the Commission on Ethics 20/20 considered the impact of “technology and global legal practice developments” in the early 2010s. For example, because many law firms store or back up client-confidential information in the cloud, another question arises: Should the Model Rules consider technological changes when focusing on this data?
Safekeeping property and IOLTA account management under Model Rule 1.15 have also been impacted by technology. For example, why should IOLTA account records be preserved for only five years, or some other finite term, when electronic storage is so plentiful and inexpensive?
One rule that many states have substantially modified is Model Rule 1.17 (“Sale of Law Practice”), which refers to the “geographic area” in which the practice to be sold has been conducted. With the advent of internet marketing, the location where firms practice is no longer limited by geography, that is by city, county or some other geographic boundary. Practice area borders are now generally limited by the borders of the states where firm lawyers are licensed.
One rule that continues to beg for greater clarification, particularly because of technology, is Model Rule 4.4 (“Respect for Rights of Third Persons”), which requires “A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent [to] promptly notify the sender.” In the context of hard copy documents and discovery, this is relatively simple to understand. Now that communications are frequently electronic, discovery is often entirely electronic, and the ease with which mistakes can occur is seemingly greater, which means interpretation of this is of greater import. Yet the Model Rules have not changed.
That is why Model Rule 5.3 was changed from “Responsibilities Regarding Nonlawyer Assistants” to “Responsibilities Regarding Nonlawyer Assistance” to recognize how technology has expanded the use of nonlawyers both inside and outside firms. The increased reliance is a direct result of changes in how firms interact with consultants, temporary staff and others.
To circle back to where this column began, we must con- sider Model Rule 5.5 (“Unauthorized Practice of Law; Multijurisdictional Practice of Law”), a rule that embodies the issues wrought by technology. Initially, it establishes that, “A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.”
That rule is clear: A lawyer may not practice law in a jurisdiction where he or she is not licensed or where the state’s Rules of Professional Conduct do not permit a lawyer to practice. The multijurisdictional aspect of Model Rule 5.5(c) does not provide support either for the proposition that lawyers may practice systematically in another state as they have during the pandemic. Rather, it contemplates situations when a lawyer enters a state to handle a legal matter in that state, not when a lawyer establishes an ongoing presence in that state, whether to practice in that state, or in another state where the lawyer is licensed.
Yet, despite the intellectual disconnect, the ABA Standing Committee on Ethics and Professional Responsibility released Formal Opinion 495, and other state bars issued similar guidance, implicitly aware that their comments are not intellectually consistent with Model Rule 5.5 or any other Model Rule.
The issue of technology transcends the literal language of the rules and raises other questions that revision of them should address. For example, revision of the Model Rules would create an opportunity for including requirements created by the dramatic changes in technology that have impacted the legal profession, such as the critical need to digitize—in other words scan—and preserve every document and record.
The COVID-19 pandemic not only highlighted the inconsistency in the Model Rules relating to practicing remotely, it also spotlighted the ethical necessity of having a paperless office. A paperless office is one that electronically captures everything client related. Whether it is a document, an email, a fax, or some other client-related item, paperless offices digitize the information. They do the same with all firm financial data. Generally, digitized items are stored in PDF or other digital format, with backups stored off-site in the event of a catastrophe, such as a fire or other event that prevents access to the physical office.
In short, technology and the pandemic have changed everything. The impact of suddenly working remotely has transformed the concept of a paperless office into a necessary reality.
When the pandemic hit, firms were forced to dramatically change just about every on-site workflow, instantly when possible. Firms were forced to allow staff to access the firm remotely while also ensuring that every document was stored electronically. The firms that had resisted technology learned that remote access works only with electronic files. Paper files were useless. Overnight, lawyers who resisted having a paperless office, without even knowing what the concept really means, were thrown into a new world. In many instances, they never stopped to consider that they were going paperless. It just happened. But the question remains: Why should the authors of the Model Rules conclude that a paperless office is an ethical obligation? To answer that question, consider some of the materials a law firm possesses. Firms have client files, IOLTA records and countless other items necessary to provide diligent client representation.
Under Model Rule 1.15, every lawyer responsible for an IOLTA account must maintain specific records. Couple that with the ABA Model Rules on Client Trust Account Records, and it becomes clearer why lawyers must store IOLTA records electronically and back them up in the cloud. Thus, having a fully digitized office is a necessity. Scanning document files and converting everything to an electronic, paperless format became an ethical necessity. Welcome to the post-pandemic world.
The ABA adopted the Model Rules in 1983, the year Microsoft introduced Word and one year after the release of the Commodore 64. Back then, law offices had libraries filled with books, and research was performed using Shepard’s Citations, in books, with multiple volumes, pocket parts and more.
As we approach the 40th anniversary of the adoption of the Model Rules, they remain largely unchanged since their adoption, despite the efforts of the Ethics 20/20 Commission. The pandemic has raised issues—largely unaddressed—relating to technology and has transformed the practice of law from an office/geographic-based existence to one where remote access is a consideration at almost every firm.
Now is the ideal time to recognize these changes in practice and to move forward on revising the Model Rules to recognize that law in 2021 is different from 1983, and from 2013.