Ethics 20/20

Draft Changes to Model Rules on Confidentiality, Technology & Globalization Now Online for Comment

  • Print.

The ABA Commission on Ethics 20/20 on Monday made public a series of draft recommendations—involving outsourcing, confidentiality and technology, plus inbound foreign lawyers—it will bring to the association’s House of Delegates next year.

In a memo, commission co-chairs Jamie S. Gorelick and Michael Traynor signaled that draft versions of all the commission’s recommendations to the House will be put online and made available for comment no later than September “to ensure that there is adequate time for feedback by the profession and the public on those proposals as well.”

The commission’s timetable calls for it to submit final versions of its recommendations to the House in May 2012. The House will consider the recommendations in August at the 2012 ABA Annual Meeting in Chicago.

The commission was created in 2009 to consider the impact of technology and globalization on professional conduct rules for lawyers, and to develop recommendations to modify those rules where appropriate.

The initial set of recommendations concern outsourcing, confidentiality issues arising from the use of technology, and limited practice authorization for inbound foreign lawyers. The commission signed off on the substance of the recommendations on April 15 during its meeting in Washington, D.C., but spent the past couple of weeks putting them into final form.

Comments on the recommendations should be submitted by July 15, states the letter from Gorelick, a partner at Wilmer Cutler Pickering Hale and Dorr in Washington, D.C., and Michael Traynor of Berkeley, Calif., a past president of the American Law Institute. The letter describes how comments may be submitted.

These specific recommendations were posted on Monday:

Outsourcing (PDF). The commission proposes revisions to comments to Rules 1.1, 5.3 and 5.5 of the ABA Model Rules of Professional Conduct, which are widely followed by the states, 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. The recommendations also cover the use of nonlawyers to work on client matters.

Confidentiality and technology (PDF). The commission proposes revisions to the Model Rules affirming that electronically stored information, including metadata, is subject to confidentiality rules. The recommendation also proposes 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.”

• Inbound foreign lawyers. The commission drafted three related recommendations. The first proposal (PDF) would amend the ABA Model Rule for Registration of In-House Counsel (which is separate from the Model Rules of Professional Conduct) so that it covers lawyers admitted in foreign jurisdictions as well as U.S. jurisdictions.

Similarly, a second recommendation (PDF) would apply the ABA Model Rule on Pro Hac Vice Admission to foreign lawyers.

Finally, the commission is proposing revisions (PDF) to Rule 5.5 of the Model Rules of Professional Conduct to allow foreign lawyers to engage in temporary practice in U.S. jurisdictions, but with tougher restrictions than apply to lawyers licensed in other U.S. jurisdictions.

Previous coverage:

ABA Journal: “Commission Seeks Input on Issues Related to Technology, Globalization” “Ethics 20/20 Pitch: Law Firms That Serve ‘Sophisticated’ Clients Need Own Regulatory System” “Ethics 20/20 Commission Settles on Recommendations on Outsourcing, Confidentiality, Foreign Lawyers”

Give us feedback, share a story tip or update, or report an error.