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Midyear Meeting 2010

MDP and Law Practice Approaches Abroad Are on Table for Ethics 20/20 Commission

Posted Feb 5, 2010 8:10 PM CDT
By James Podgers

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As the ABA Commission on Ethics 20/20 begins to shift its work into high gear, one of its co-chairs indicated today that the commission’s mission is not to change the world when it comes to lawyer ethics, but rather to adapt ethics rules for U.S. lawyers to changes going on in the world.

The name of the new commission is reminiscent of the Ethics 2000 Commission, which a decade ago conducted a thorough review of the ABA Model Rules of Professional Conduct and proposed a long series of revisions that were debated by the association’s 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 the Ethics 20/20 Commission 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 WilmerHale in Washington, D.C. (Lamm is a partner at White & Case in D.C.)

The commission’s recommendations won’t necessarily focus on proposals to further amend the Model Rules of Professional Conduct, said Traynor during a break in the commission’s first scheduled public hearing. The hearing was held in conjunction with the ABA Midyear Meeting being held through Tuesday in Orlando, Fla. The commission also 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 also 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.

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 defeated in a close vote after heated debate.

MDP is a topic on the table for consideration by the commission, said Traynor, “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,” he said.

If some of the comments at the commission’s first public hearing are any indication, it will hear plenty of arguments on both sides of the 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 it 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?”

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Lawrence Fox

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 and 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 Philadelphia’s Drinker Biddle & Reath.

Traynor said the Ethics 20/20 Commission 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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