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Ethics 20/20 Commission Fine-Tunes Proposals on Technology, Outsourcing; Comments Due Nov. 30

Posted Sep 20, 2011 9:13 AM CDT
By James Podgers

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As the ABA Commission on Ethics 20/20 approaches its target date for submitting a package of resolutions to the association’s House of Delegates, the nature of the draft proposals it's circulating for comment are changing.

Created in 2009 to consider the impact of technology and globalization on professional conduct rules for lawyers, the commission has been issuing draft proposals over the last few months aimed at revising ethics measures developed by the ABA, particularly the Model Rules of Professional Conduct. In doing so, the commission has emphasized the importance of getting outside feedback on its draft proposals.

But now, with less than a year left until the commission brings its final recommendations to the House, the commission’s proposals have begun to reach the fine-tuning stage.

That is apparent from the latest series of draft proposals that the commission posted late Monday. Each of them is a revised version of drafts that the commission has already issued. Moreover, the drafts are largely similar to the earlier ones except for revisions that pinpoint specific issues or clarify earlier language.

But the latest drafts still aren’t the final versions that the commission will submit in May for the House of Delegates to consider in August during the ABA’s 2012 annual meeting in Chicago, state commission co-chairs Jamie S. Gorelick and Michael Traynor in a cover memo (PDF) that also was posted to the commission website.

The commission is asking to receive comments on the drafts by Nov. 30. Comments may be submitted to Natalia Vera, the commission’s senior research paralegal.

“Our work is at a critical stage,” state Gorelick and Traynor in the cover memo, “so we still need to hear from you about what we have produced. We want feedback and input from as wide a swath of the public and profession as possible so that we can present full vetted recommendations to the House of Delegates next August.” The commission plans to issue one more draft of each proposal in early 2012.

Gorelick is a partner at Wilmer Cutler Pickering Hale and Dorr in Washington, D.C. Traynor, of Berkeley, Calif., is a past president of the American Law Institute.

The draft proposals posted today focus primarily on these topics:

Technology and confidentiality. In May, the commission issued a draft proposal (PDF) to revise the Model Rules of Professional Conduct—which are the direct basis for lawyer ethics rules in every state except California—to affirm that electronically stored information is subject to confidentiality rules. The recommendation also proposed adding a provision to Model Rule 1.6 (Confidentiality of Information) directing that a lawyer make reasonable efforts to “prevent the inadvertent disclosure of, or unauthorized access to, information relating to the representation of a client.”

The key change in the revised draft (PDF) expands the list of factors that help determine whether the lawyer’s efforts to prevent inadvertent disclosure or unauthorized access to the client information were reasonable.

Technology and client development. The commission’s initial draft proposal (PDF) concluded that no new restrictions in this area are necessary to accommodate advances in communications technology, but the commission did revise comments to some Model Rules to clarify how lawyers may use the new technology to disseminate information about legal services and to develop clients. Comment 5 to Rule 7.2 (Advertising), for instance, was revised to affirm that a lawyer may pay others for generating client leads, including “pay-per-click” and “pay-per-lead” services available on the Internet, as long as they don’t constitute a recommendation of the lawyer’s services or involve impermissible fee-sharing.

The further revision adds language to the comment stating that lead generators must disclose that they are being paid by lawyers who receive referrals. In addition, lead generators may not state or imply that they have analyzed a potential client’s legal problems when determining which lawyers should receive referrals.

Outsourcing. The commission has concluded that revisions to the text of the Model Rules are not necessary to accommodate the growth in outsourcing legal work, but its initial draft proposal (PDF) outlined revisions to comments to some of the rules to identify factors lawyers need to consider when retaining outside counsel to work on client matters, and affirming that a client’s informed consent should be obtained before bringing in outside lawyers.

Monday's further revision (PDF) describes a lawyer’s obligations when a client requests multiple firms to perform discrete legal tasks relating to the same matter.

The commission on Monday also posted revised draft proposals relating to pro hac vice admission (PDF), multijurisdictional practice (PDF) and in-house counsel, but the new versions do not differ in substance from the previous drafts.

Recent Ethics 20/20 coverage on ABAJournal.com:

Ethics 20/20 Commission Proposes to Remove More Barriers to Cross-Border Practice

Ethics 20/20 Commission: Doing Nothing About Lawyer Rankings Is the Best Course

Ethics 20/20: Clarifications of Existing Rules Are Enough to Accommodate Lawyer Marketing on Web

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