Legal Ethics

Lawyers Have Duty to Stay Current on Technology's Risks and Benefits, New Model Ethics Comment Says

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Updated: Lawyers can’t be Luddites, according to changes to the model ethics rules approved Monday by the ABA House of Delegates.

Some of the changes approved by the House update the ABA Model Rules of Professional Conduct to acknowledge that information is stored digitally as well as in paper files, clients communicate electronically as well as by phone calls, and email isn’t the only method of electronic communications.

But the technology-related amendments go further, requiring lawyers to keep current on more than just changes in the law. Lawyers also have a duty to keep abreast of the benefits and risks associated with technology, according to new commentary language added to Rule 1.1 on the duty to provide competent representation. Click here (PDF) to see all of the amendments added to all of the model rules at this year’s annual meeting.

A different change explores lawyer’s obligations when they receive metadata—information that is embedded in electronic documents. New commentary says lawyers who receive metadata have a duty to notify the sender if they know or reasonably know that the metadata was inadvertently sent. The language does not address the issue of whether lawyers can take a look at that metadata, however.

The proposed resolution outlining the changes, along with amendments to the resolution, are posted online. They were proposed by the ABA Commission on Ethics 20/20, which was appointed in 2009 to study the impact of technology and globalization on the legal profession.

The resolution is one of six changes to model ethics rules adopted by the House. Other changes:

Deal with online marketing tools for lawyers. One change is intended to make clear that online discussions can create duties to prospective clients. A different change, a new comment, says lawyers can pay for online lead generation services, as long as certain safeguards are followed.

• Clarify lawyers’ obligations when using outsourcing.

• Recognize the need to disclose limited client information for conflicts checks before law firms merge or lawyers move to new employment.

Help mobile lawyers. A new ABA Model Rule on Practice Pending Admission generally allows lawyers who move to a new state to practice there for up to a year while seeking admission.

Make it easier for young lawyers who move to a new state to gain admission without taking the bar exam. The rule change reduces the experience needed to obtain a license through admission by motion procedures.

Updated on Aug. 9 to include other House action on ethics rule changes.

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