ABA Commission on Ethics 20/20

1. ABA Commission on Ethics 20/20 • Michael Traynor, Commission Co-Chair • Andrew Perlman, Chief Reporter • Judith Miller, Commissioner & Chair of Outreach Committee • www.americanbar.org/Ethics2020

2. Commissioners Jamie S. Gorelick (Co-Chair), WilmerHale (Washington, D.C.)Michael Traynor (Co-Chair), President Emeritus, ALI (California) Stephen Gillers, New York University Law School Jeffrey B. Golden, London School of Economics William C. Hubbard, Nelson Mullins Riley & Scarborough (S. Carolina) George W. Jones, Sidley Austin (Washington, D.C.) Justice Elizabeth B. Lacy, Virginia Supreme Court Carolyn B. Lamm, White & Case (Washington, D.C.) Judith A. Miller, Fmr. Chair, Section of Litigation (Washington, D.C.) Judge Kathryn A. Oberly, District of Columbia Court of Appeals Roberta Cooper Ramo, Modrall & Sperling (New Mexico) Herman J. Russomanno, Russomanno & Borello (Florida) Theodore Schneyer, University of Arizona Law School Carole Silver, Indiana University Maurer School of Law Frederic S. Ury, Ury & Moskow (Connecticut) Chief Justice Gerald W. VandeWalle, North Dakota Supreme Court

3. ABA Commission on Ethics 20/20: Studying a “New Normal” • Created in 2009 to study how rules and policies concerning lawyer conduct need to be revised in light of: • Changes in Technology • Globalization

4. Ethics 20/20 Commission Working Groups • Technology • Outsourcing • Conflicts of Interest, Uniformity & Choice of Law • Inbound Foreign Lawyers • Alternative Litigation Financing • Entity Regulation/Alternative Business Structures • Rankings

5. Technology Working Group (Confidentiality) The Past: Protecting Client Information

6. Technology Working Group (Confidentiality) The Reality: Protecting Client Information

7. Question • Do lawyers have different ethical obligations when storing confidential information on these new forms of technology?

8. Commission Proposals Under Consideration • • Amend several Model Rules and their Comments to offer more clarity regarding a lawyer’s obligations when using technology • •Create a user-friendly ABA website with answers to common questions

9. Technology (Client Development) The Past

10. Technology (Client Development) Websites Pop-up Ads Blogs The Present

11. Question • Do lawyers have different ethical obligations when using new technology for client development?

12. Commission Proposals Under Consideration • • Existing rules and principles apply well to new technology • •Clarifications needed in certain areas, such as the definition of a “solicitation”

13. Outsourcing Outsourcing: Abroad

14. Outsourcing Outsourcing: Domestic (More Common)

15. Question • What ethical obligations do lawyers have when using lawyers and nonlawyers outside the firm?

16. Commission Proposals Under Consideration • • Identification of factors to consider when retaining lawyers outside the firm • •Identification of factors to consider when using nonlawyers outside the firm (e.g., investigators, electronic discovery vendors)

17. Uniformity Working Group (Lawyer Mobility) Lawyer Mobility in an Increasingly Borderless World

18. Questions • How much mobility is necessary to meet client needs while ensuring appropriate client protections? • Do the existing rules offer sufficiently clear guidance to resolve inconsistencies among jurisdictions?

19. Commission Proposals Under Consideration • • Model Rule amendments to clarify how to resolve inconsistencies among jurisdictions’ rules • •Permitting more lawyer mobility while ensuring adequate protections for clients and the public

20. Inbound Foreign Lawyers Foreign Lawyer Fly-In/Fly-Out (FIFO)

21. Question • How should the profession regulate the practice of foreign lawyers who need to visit the United States to assist their clients?

22. Commission Proposals Under Consideration • • Amendments to several Model Rules that will more clearly authorize, but place appropriate limitations on, the practice of foreign lawyers in the United States

23. Alternative Litigation Financing Alternative Sources of Litigation Financing for Lawyers and Clients

24. Questions • What is alternative litigation financing? • What are a lawyer’s ethical obligations when the lawyer (or the client) wants to use it?

25. Commission Proposals Under Consideration • • Development of a white paper that describes how existing principles and values apply to these financing arrangements.

26. Question • Can alternative law firm practice structures enable greater innovation and more responsiveness to client needs in a manner that is consistent with the profession’s core values?

27. Alternative Law Practice Structures: The Commission’s Conclusions • • No publicly traded law firms • • No outside passive equity investment in law firms • • No multidisciplinary practice

28. Law Firm Rankings and Rating • Resolved, that the American Bar Association examine any efforts to publish national, state, territorial, and local rankings of law firms and law schools.

29. Rating the Rankings? Law Firm Rankings and Ratings

30. Commission Findings • • No changes to the Model Rules are necessary • • Statistical analysis of hundreds of rankings would be prohibitively expensive • •Recommendation that the Standing Committee on Ethics and Professional Responsibility produce an opinion examining confidentiality issues as well as concerns about misleading communications

31. Commission Outreach to Date • Public hearings • Dozens of witnesses at public hearings held throughout the country • Hundreds of comments received on the Commission’s initial proposals and papers • Presentations to state, local, specialty, and international bar associations  • Meetings with multiple ABA entities • CLE, podcasts, conferences, and webinars relating to the Commission’s work • Presentations to the Conference of Chief Justices and the National Organization of Bar Counsel

32. ABA Commission on Ethics 20/20 • Michael Traynor, Commission Co-Chair • Andrew Perlman, Chief Reporter • Judith Miller, Commissioner & Chair of Outreach Committee • www.americanbar.org/Ethics2020