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Ethics 20/20 - New Amendments to the ABA Model Rules

The ABA’s Commission on Ethics 20/20 has been charged to review and suggest changes to the Model Rules of Professional Conduct in the context of the rapidly changing practice of law. In August 2012, the ABA approved several proposals by the Commission to amend the Model Rules. Several of these changes have been previously discussed in this column.

A large group of changes implement the Commission’s charge to update the technological language of the Model Rules. Many of these changes do not change the substance of any Rule, but make the Rules more applicable to current technology. An amendment to Comment 8 to Rule 1.1 (Competence) adds the requirement that in maintaining competence a lawyer should keep abreast of the “benefits and risks associated with relevant technology.” Also, substantial amendments to Comment 8 to Rule 1.6 (Confidentiality of Information) detail factors to be considered by a lawyer in safeguarding the confidentiality of information, especially electronic information, and the Comments to Rule 4.4 have been amended to cover metadata inadvertently sent to a receiving lawyer.

Addressing the increasing use of social networks, Comment 3 to Rule 7.2 (Advertising) has been modified to cover Internet marketing methods. First, lawyers are prohibited from paying others for “recommending the lawyer’s services or for channeling professional work in a manner that violates Rule 7.3. A communication contains a recommendation if it endorses or vouches for a lawyer’s credentials, abilities, competence, character, or other professional qualities.” On the other hand, “a lawyer may pay others for generating client leads, such as Internet-based client leads, as long as the lead generator does not recommend the lawyer.”

Another group of changes deal with the general topic of outsourcing. New Comments to Rule 1.1 provide that: “[b]efore a lawyer retains or contracts with other lawyers outside the lawyer’s own firm to provide or assist in the provision of legal services to a client, the lawyer should ordinarily obtain informed consent from the client and must reasonably believe that the other lawyers’ services will contribute to the competent and ethical representation of the client.” The reasonableness of retaining outside lawyers depends, in part, on the competence and professionalism of the outside lawyer. New Comments to Rule 5.3 specifically extend the supervisory obligations regarding nonlawyer assistants to “nonlawyers outside the firm” who work on legal matters related to a client. The Comment further states: “When using such services outside the firm, a lawyer must make reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer’s professional obligations.”

Recognizing the frequency of firm mergers and interchange of lawyers between firms, Rule 1.6 has been amended to allow the disclosure of information relating to the representation of a client if reasonably necessary to “detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm.” Disclosure is limited to the identity of the client and matter for purpose of detecting and resolving conflicts of interest, and is prohibited if it would compromise the attorney-client privilege or otherwise prejudice the client.

Addressing a growing issue, Comment 2 has been significantly revised to delineate in greater detail than before when a person becomes a “prospective client.” Among other provisions, the Comment now states “a person who communicates with a lawyer for the purpose of disqualifying the lawyer is not a ‘prospective client.’”

Finally, a new Model Rule on Practice Pending Admission covering lawyers currently holding a license to practice law in another U.S. jurisdiction and engaged in the active practice of law for three of the last five years. Comment 1 to the Rule states: “This Rule recognizes that a lawyer admitted in another jurisdiction may need to relocate to or commence practice in this jurisdiction, sometimes on short notice. The admissions process can take considerable time, thus placing a lawyer at risk of engaging in the unauthorized practice of law and leaving the lawyer’s clients without the benefit of their chosen counsel. This Rule closes this gap by authorizing the lawyer to practice in this jurisdiction for a limited period of time, up to 365 days, subject to restrictions, while the lawyer diligently seeks admission.”

Many of these changes are not controversial, and amendments to individual state codes of conduct should be considered in due course.