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Ethics 20/20 Commission Proposes Revisions to Rules on Outsourcing, Mobility, Confidentiality

Posted May 9, 2012 9:15 AM CDT
By James Podgers

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When the ABA's policy-making House of Delegates convenes on Aug. 8 during the association's 2012 Annual Meeting in Chicago, its agenda will include a series of resolutions from the Commission on Ethics 20/20—resolutions covering lawyer mobility, legal process outsourcing and maintaining client confidences.

Appointed in 2009 by then-ABA President Carolyn B. Lamm, a partner at White & Case in Washington, D.C., the commission's mission was to study the impact of technology and globalization on the practice of law and the structure for regulating U.S. lawyers. In its summary report (PDF) to the House, the commission states that its recommendations stem from a recognition of two key trends:

First, "technology has irrevocably changed and continues to alter the practice of law in fundamental ways... Lawyers must understand technology in order to provide clients with the competent and cost-effective services that they expect and deserve."

Second, and coupled with technology, "globalization continues to transform the legal marketplace...with more clients confronting legal problems that cross jurisdictional lines and more lawyers needing to respond to those client needs by crossing borders (including virtually) and relocating to new jurisdictions."

The commission's resolutions going to the House for consideration in August attempt to respond to those trends in the following specific areas:

TECHNOLOGY AND CONFIDENTIALITY

Essentially, the commission is recommending revisions (PDF) to the Model Rules of Professional Conduct to clarify a lawyer's ethical duty to take reasonable measures to protect the confidentiality of a client's information, including materials stored electronically.

The revisions also would provide additional guidance (PDF) on how a lawyer should deal with information that was inadvertently sent.

OUTSOURCING

The commission proposes (PDF) to revise provisions in the Model Rules to emphasize that lawyers and law firms should make reasonable efforts to ensure that services provided by nonlawyers outside the firm perform that work in a manner that is compatible with the lawyer's own professional obligations, including protecting client information from inadvertent disclosure.

LAWYER MOBILITY

The commission's recommendations (PDF) in this area include revisions to the Model Rules to address confidentiality and conflicts of interest when a lawyer considers changing firms. The commission also is proposing adoption of a Model Rule on Practice Pending Admission (PDF) that would allow a lawyer to establish a presence in a new jurisdiction while pursuing permanent admission there, and revisions (PDF) to the existing ABA Model Rule for Admission by Motion.

The commission ensured that its first set of proposals to revise various provisions in the ABA Model Rules of Professional Conduct and related policies addressing legal ethics issues will come before the House of Delegates this summer by filing six resolutions and supporting reports on Monday, about 24 hours before Tuesday's deadline for getting on the House's regular agenda in Chicago. Resolutions submitted after the filing deadline still may be considered as late reports, but they are distributed to the House's 560 members essentially on a last-minute basis, and action on late reports often is postponed.

The commission also is using the weeks leading up to the Annual Meeting to engage in extensive outreach to other entities represented in the House in efforts to build consensus on its package of recommendations.

The commission expects to submit additional recommendations to the House of Delegates for consideration in February at the 2013 Midyear Meeting in Dallas, but the commission won't make a final decision on those proposals until this fall. In April, however, the commission decided that it will not develop a proposal on whether nonlawyers should be allowed to have some form of limited ownership interest in U.S. law firms.

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