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ABA Commission on Ethics 20/20

ABA Commission on Ethics 20/20. www.americanbar.org/Ethics2020. 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. Commissioners.

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ABA Commission on Ethics 20/20

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  1. ABA Commission on Ethics 20/20 • www.americanbar.org/Ethics2020

  2. 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

  3. 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

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

  5. Commission Outreach to Date • Early release of draft proposals and revised drafts • Hundreds of comments received on the Commission’s initial proposals and papers • Public hearings held throughout the country • 75+ presentations to ABA entities as well as state, local, specialty, and international bar associations 

  6. Timeline for Commission Proposals August 2012 February 2013 Conflicts-related choice of law issues Alternative Law Practice Structures (including choice of law issues) Inbound Foreign Lawyers • Technology (confidentiality) • Technology (marketing) • Outsourcing • Mobility Issues(admission in new jurisdictions, conflicts screening for laterals)

  7. Technology Working Group • Two Sub-Committees • Confidentiality Issues • Client Development Issues

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

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

  10. Proposal to Amend Model Rule 1.6 (Duty of Confidentiality) • (c) A lawyer shall make reasonable efforts to prevent the unintended disclosure of, or unauthorized access to, information relating to the representation of a client.

  11. Factors to be considered in determining the reasonableness of the lawyer’s efforts: • • The sensitivity of the information • • The likelihood of disclosure if additional safeguards are not employed • • The cost of employing additional safeguards • • The difficulty of implementing the safeguards • • The extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use)

  12. Other Key Commission Proposals in this Area • •Creation of a user-friendly ABA website with answers to common questions • •Amendment to Comment [6] to Model Rule 1.1 (Competence). Competence requires a lawyer to stay abreast of the “benefits and risks associated with technology”

  13. Other Key Commission Proposals in this Area • • Amendment to Comment [4] to Model Rule 1.4 (Communication), telling lawyers that they need to respond promptly to “client communications” and not just “telephone calls.” • • Amendments to Model Rule 4.4(b) (receipt of misdirected documents) to clarify that a lawyer’s duty to notify the sender of a mistake arises for both documents as well as “electronically stored information” (including electronic metadata).

  14. Technology (Client Development) The Past

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

  16. Amendments to Model Rule 1.18 (Prospective Clients) • (a) A person who discussescommunicates with a lawyer about the possibility of forming a client-lawyer relationship and has a reasonable expectation that the lawyer is willing to consider forming a client-lawyer relationship with respect to a matter is a prospective client.

  17. Amendments to Comment [5] to Model Rule 7.2 (Advertisements) • “A communication contains a recommendation if it endorses or vouches for a lawyer’s credentials, abilities, competence, character, or other professional qualities.”

  18. Amendments to Model Rule 7.3 (Solicitations) • “A solicitation is a targeted communication initiated by the lawyer that is directed to a specific potential client and that offers to provide, or can reasonably be understood as offering to provide, legal services.” • “In contrast, a lawyer’s communication typically does not constitute a solicitation if it is directed to the general public . . . or if it is in response to a request for information or is automatically generated in response to Internet searches.”

  19. Outsourcing • Amendments to Model Rule 1.1 (Competence) that identify the relevant factors to consider when outsourcing work to lawyers outside the firm • Amendments to Model Rule 5.3 that identify the relevant factors to consider when outsourcing work to nonlawyers outside the firm

  20. Mobility Issues • Amendments to Model Rule 1.6 (Duty of Confidentiality) that explain the ethical considerations associated with the disclosure of confidential client information to detect and prevent conflicts of interest, such as when lawyers move to another firm or when firms merge. • A new Model Court Rule on Practice Pending Admission that would enable a lawyer licensed in one jurisdiction to establish a systematic and continuous presence in a new jurisdiction while diligently pursuing admission in the new jurisdiction through one of the procedures that the jurisdiction authorizes (e.g., admission by motion) • Amendments to the Model Rule on Admission by Motion that would reduce the time in practice requirement from 5 years to 3 years and a resolution urging jurisdictions that have not adopted this Model Rule to do so without additional restrictions, such as reciprocity requirements

  21. Alternative Legal Practice Structures • Issues Paper (April 2011) – • Global and domestic scan of legal practice environments in which U.S. lawyers and law firms are working, including District of Columbia, England and Australia. • Five options distilled • Commission determined NOT to proceed with: • Publicly traded law firms; • Passive, outside nonlawyer investment in law firms • Multidisciplinary practice

  22. Alternative Legal Practice Structures • Discussion Draft (December 2011) • Recommends adoption of modified version of District of Columbia Model Rule 5.4 in place for over 21 years: • Permits limited nonlawyer ownership in law firms BUT • Such law firms restricted to providing legal services • Nonlawyers must be active in the firm, providing services supporting the delivery of legal services by the lawyers (i.e. no MDP) • Nonlawyer ownership and voting interests restricted by percentage cap to ensure lawyers retain control • Nonlawyers agree to conduct themselves in accordance with lawyer Rules of Professional Conduct • Lawyer owners responsible for ensuring nonlawyer owners are of good character

  23. Alternative Legal Practice Structures • Next Steps: • Comment Period for Discussion Draft Closes February 29, 2012 • Analysis of Comments and responses by ALPS Working Group • YLD presentation to Commission in April 2012 • Additional YLD survey (to supplement ALPS webinar July 2011 and summer 2011 YLD survey on ALPS issues – limited survey sample) • Proposal for broad survey of GP Solo membership

  24. Timeline for Commission Proposals August 2012 February 2013 Conflicts-related choice of law issues Alternative Law Practice Structures (including choice of law issues) Inbound Foreign Lawyers • Technology (confidentiality) • Technology (marketing) • Outsourcing • Mobility Issues(admission in new jurisdictions, conflicts screening for laterals)

  25. ABA Commission on Ethics 20/20 • www.americanbar.org/Ethics2020 • Comments? Contact: • Andrew Perlman, Chief Reporter, aperlman@suffolk.edu • Paul D. Paton, Reporter, ppaton@pacific.edu

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