CBA Record - Legal Ethics Column by John Levin

The CBA Record is the magazine of The Chicago Bar Association

Article by John Levin :: It has been a year since amendments to Illinois Supreme Court Rule 779 authorized the Administrator of the ARDC to file unauthorized practice of law proceedings against disbarred lawyers and unlicensed individuals in Circuit Court. (See this column of March 2012.) The amendments to Rule 779 (effective December 7, 2011) expanded the standing of the ARDC to prosecute the unauthorized practice of law.

Article by John Levin :: Illinois Rule of Professional Conduct 1.7 prohibits representation of two clients “if the representation involves a concurrent conflict of interest.” Rule 1.7(b) allows a waiver of a conflict if:
 
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
 
(2) the representation is not prohibited by law;
 

Article by John Levin :: If you have not yet considered using software-as-a-service (SaaS} or platform-as-a-service (PaaS), you soon will. These are technologies contained under the general heading of “cloud computing”. As set out in Pennsylvania Bar Association Formal Opinion 2011-200, “cloud computing is merely ‘a fancy way of saying stuff’s not on your computer.’” The question facing lawyers wanting to use these services is “[m]ay an attorney ethically store confidential client information in ‘the cloud’”? Or more simply, may an attorney store client confidences on someone else’s computer?

Article by John Levin :: On August 3, Lawrence R. Baca, the 2012 winner of the ABA’s Thurgood Marshall Award, spoke at the CBA on the subject of Native American lawyers, civil rights and Federal Indian law. (The use of the word “Indian” follows Baca’s use in the context of Federal law.) The presentation raised some issues in legal ethics of interest to all lawyers.

Article by John Levin :: Some of you may recognize that I have stolen part of this column’s title from Daniel Kahneman’s recent book Thinking, Fast and Slow. This book, which is well worth reading, is an expansion of the material contained in two journal articles that won Kahneman the Nobel Prize in Economics. The thesis of the book is that our attempts at rational judgment in the context of uncertainty are adversely affected by innate (and often irrational) biases.

Article by John Levin :: The ABA Commission on Ethics 20/20 has paid significant attention to the impact of technology on the practice of law. The Commission recently issued a Revised Draft for Comment on Technology and Confidentiality, which contains recommendations for amendments to the ABA Model Rules and Comments. These proposals have been drafted to help lawyers understand the risks “that technology can pose … to clients’ confidential information.” Two of the recommendations deserve special attention.

Article by John Levin :: The enforcement of the prohibition on the unauthorized practice of law in Illinois has just undergone a major change. The prior enforcement rules were discussed in these columns of May 2005 and June 2009. As stated in those columns, the law in Illinois governing licensing of attorneys is 705 ILCS 205, known as the Attorney Act.  The operative language in Section 1 is:

Article by John Levin :: "No person shall be permitted to practice as an attorney or counselor at law within this State without having previously obtained a license for that purpose from the Supreme Court of this State."

Article by John Levin :: Given recent news events involving the sexual abuse of minors, lawyers should ask if and when they have an obligation to report abuse of a minor to the appropriate authorities. The answer is not obvious.

Article by John Levin :: This year, the CBA has had a number of programs and seminars that discussed the issue of retention agreements and other aspects of the “business part” of practicing law. (See this column of June/July 2011.) A recent opinion out of Illinois Second Appellate District [Whelan Law Associates, Ltd. v Kruppe, No. 09-AR-182, March 31, 2011] gives some useful insight into this complex and relevant issue.

Article by John Levin :: From the time computers became commonplace, we have asked whether or not they may evolve to the point that they can actually practice law. The answer seems to be “sort of”.

Article by John Levin :: Over several decades, the authors of this column have addressed many issues involving professional responsibility and legal ethics.  In almost all cases, they have focused on the Rules of Professional Conduct, opinions of bar associations, case law - and how we, as lawyers, govern our behavior according to these rules.  However, there is a different way of looking at ethics.

Article by John Levin :: Several months ago, in a presentation to the Chicago Bar Association’s Professional Responsibility Committee, Chicago attorney John C. Martin spoke on the subject of “the three R’s” of fee agreements.  Most of the presentation focused on the provisions of Illinois Rule of Professional Responsibility 1.05 – Fees.

Article by John Levin :: The last column discussed the issue of direct outsourcing of legal services to third party vendors – those not party to the lawyer-client relationship.  Another issue involving the third party providers is the use of search engines on the Internet, usually by non-lawyers looking for free or cheap legal advice, or “crowdsourcing”. 

Article by John Levin :: As communications become easier and the search for more economical legal services spreads, the use of third party providers – those not part of the direct attorney-client relationship – has grown.  For ease of discussion, I have divided this phenomenon into two parts: “outsourcing” - the use of third-party vendors to perform specific legal services; and “crowdsourcing” - when a user of legal services goes onto the Internet and searches out free advice.

Article by John Levin :: The new 2010 Illinois Rules of Professional Conduct contain significant changes concerning the maintenance of client confidences.

Article by John Levin :: 2010 Rule 1.6(a) states:
A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b) or required by paragraph (c).

Article by John Levin :: Illinois Rule of Professional Conduct 5.5, effective 2010, permits lawyers admitted in states other than Illinois to provide legal services in Illinois under certain conditions. [See this column of January 2010.]  The 2010 rule, based on the ABA Model Rules, is a significant advance toward recognizing that the practice of law is becoming multi-jurisdictional. As stated in Comment 5 to the Rule:

Article by John Levin :: In the July 2010 edition of the CBA Record, this column discussed the formation of the American Bar Association’s Commission on Ethics 20/20, and volunteered to keep you informed on the project’s progress.  Recently, two issue papers were released by the Commission for comment, both relating to law and technology.  One relates to issues concerning client confidentiality in connection with a lawyer’s use of technology, and the other to issues concerning a lawyer’s use of Internet based client development tools.  At the least, the concern with these issues shows that the next edition

Article by John Levin :: In his long career as a lawyer and Supreme Court Justice, John Paul Stevens has had a significant impact on American law and jurisprudence – not the least in the areas of professional responsibility and legal ethics.  I would like to discuss two of them in this column.

Article by John Levin :: It has been less than ten years since the last major review by the American Bar Association of its Model Rules of Professional Conduct, and it has been less than a year since the Illinois Supreme Court adopted the 2010 Illinois Rules of Professional Conduct.  One would think that the legal profession deserves a break and time to absorb the changes in the rules that govern our professional conduct.  But not so - and not so for good reason.

Article by John Levin :: Recently, two items came to my attention that, although separated by a continent, relate to the same issue. The first was a communication to the CBA by a member who attended a boxing match in California in which a law firm advertised its name across the chest of a scantily clad woman holding a sign announcing the round of the fight.  The CBA member questioned whether this form of advertising was protected speech under the First Amendment.  The second was the March 12, 2010 decision of the U.S. Court of Appeals for the Second Circuit in Alexander v.

Article by John Levin :: Recently, two items came to my attention that, although separated by a continent, relate to the same issue. The first was a communication to the CBA by a member who attended a boxing match in California in which a law firm advertised its name across the chest of a scantily clad woman holding a sign announcing the round of the fight.  The CBA member questioned whether this form of advertising was protected speech under the First Amendment.  The second was the March 12, 2010 decision of the U.S. Court of Appeals for the Second Circuit in Alexander v.

Article by John Levin :: The 2010 Illinois Rules of Professional Conduct allow a limited right for lawyers in one jurisdiction to practice law in another. (See this column in the January 2010 issue of the CBA Record.)  However, each jurisdiction in which you practice will have its own set of ethical rules.  Since Rule 8.5(a) states that “[a] lawyer many be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct”, how are you to know what rules apply if your conduct takes place in more than one state?

Article by John Levin :: While the new 2010 Illinois Rules of Professional Conduct have made a few substantive changes to the old Rules, the major change has been the adoption of the Comments to the Rules. The Comments to Rule 1.14 – Client with Diminished Capacity - provide a good example of the benefits of the adoption of the Comments.

Article by John Levin :: It has been over ten years since the California Supreme Court in Birbower, Montalbano, Condon & Frank v.

Article by John Levin :: Rule 7.2 of the new 2010 Illinois Rules of Professional Conduct recognizes, albeit briefly, that attorneys may communicate with potential clients by e-mail and advertise over the Internet.  The rules that apply to in person or written advertising and solicitation now also apply to electronic communications.  While these new rules recognize that major changes have occurred in how potential clients locate lawyers and how lawyers put their names and credentials into the marketplace, they merely scratch the surface of the complications created by the Internet.

Article by John Levin :: As discussed in the most recent column [September 2009], the Illinois Supreme Court has adopted the 2010 Illinois Rules of Professional Conduct, and while the general tenets of the 2010 Rules are the same as the previous Rules, there are some significant changes.  Given that my own career was in a corporate practice, I would like to first focus on the changes to Rule 1.13: Organization as Client.

Article by John Levin :: On July 1, 2009, the Illinois Supreme Court adopted the 2010 Illinois Rules of Professional Conduct.  These Rules, the result of many years of discussion and debate by the bar associations and hearings before committees of the Illinois Supreme Court, become effective on January 1, 2010.  If the past is any indication, these new Rules will govern the professional conduct of Illinois lawyers for at least the next 20 years.

Article by John Levin :: A few months ago, the American Bar Association’s Standing Committee on Client Protection published its 2009 Survey of Unlicensed Practice of Law Committees. The Standing Committee sent questionnaires to jurisdictions in the United States asking a series of questions on the laws prohibiting the unauthorized practice of law and the enforcement procedures in the particular jurisdiction.  39 jurisdictions responded and 29 are actively enforcing the prohibition to some extent.

Article by John Levin :: As you may note from the short bio at the end of this column, I spent most of my career working as in-house counsel for corporation.  In that capacity I often went out of Illinois to work in local offices both in the United States and abroad.  One of the nagging questions on these trips was to what extent was I practicing law in some foreign jurisdiction without a license in that jurisdiction.  Since the law was not very clear on that subject and no one asked, I treated the problem as just another nagging question.

Article by John Levin :: The issue of mediation or binding arbitration – both voluntary and mandatory –  for fee disputes has recently received significant attention.

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