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Ethics 20/20 Eyes Global Change

Posted Mar 1, 2010 2:40 AM CDT
By James Podgers

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As the ABA commission on Ethics 20/20 begins to shift into high gear, a co-chair indicated its mission is not to change the world of lawyer ethics but to adapt ethics rules for U.S. lawyers to changes in the world.

The name of the new commission is reminiscent of the Ethics 2000 Commission, which a decade ago thoroughly reviewed the ABA Model Rules of Professional Conduct and proposed a long series of revisions debated by the House of Delegates at two different meetings. (The Model Rules are the basis for lawyer ethics rules in every state except California.)

The mission of Ethics 20/20 is more specific, although the implications of its work will be significant for U.S. lawyers.

When ABA President Carolyn B. Lamm appointed the commission soon after starting her one-year term in August, she charged it with addressing the legal ethics challenges arising out of advances in technology and increasing globalization, said commission co-chair Michael Traynor of Berkeley, Calif., a past president of the American Law Institute. His co-chair is Jamie S. Gorelick, a partner at Wilmer Cutler Pickering Hale and Dorr in Washington, D.C.

The commission’s recommendations won’t necessarily focus on proposals to further amend the Model Rules, said Traynor during a break in the commission’s first scheduled public hearing, held during the ABA Midyear Meeting. The commission may offer advice on best-practice approaches for lawyers, educational materials and issues reports, Traynor said. “We don’t have any prejudgments on any of those things,” he told the ABA Journal.

The commission will take a close look at practice and ethics developments for lawyers in Europe and other parts of the world, Traynor said, and consider how lawyers in smaller firms and solo practice can use technology to their advantage.

“It’s becoming more feasible for practitioners in smaller firms to compete in a larger marketplace through the use of the technology that’s available,” he said.

COMMISSION GOALS

Traynor also downplayed concerns expressed in some quarters that one goal of the commission is to resurrect multidisciplinary practice, which would allow lawyers to do business more easily in jurisdictions where they are not licensed. MDP was proposed by the Ethics 2000 Commission, but it was defeated in a close vote after heated debate.

MDP is on the table for consideration by the commission, Traynor said, “but we’re really looking at alternative business structures, not just MDP,” including new approaches being introduced in other countries. “What’s going on in the rest of the world is relevant to American law practice today.”

If comments at the commission’s public hearing are any indication, it will hear plenty of arguments on both sides of MDP and other issues.

Encouraging the commission to take a hard look at these issues, Laurel S. Terry, a professor at Pennsylvania State University’s Dickinson School of Law, said the panel needs to consider a crucial question: “Are we at a change of an era where to stay with the old ways will render lawyers obsolete?”

But Lawrence J. Fox, a past chair of the Section of Litigation and a staunch opponent of MDP, expressed concerns about whether the commission will be used as the vehicle to push certain agendas. He questioned whether its creation was necessary. “We need to think about how to export our legal values rather than import legal values from other places,” said Fox, a partner at the Philadelphia office of Drinker Biddle & Reath.

Traynor said Ethics 20/20 has set a work schedule that will allow it to start bringing recommendations to the House of Delegates at the 2011 midyear meeting.

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