The Challenges of Lawyer Regulation

The legal profession and its regulators are facing new issues and challenges more so now than ever before. It seems like every time we turn around, there is a flurry of e-mails, articles, conferences, seminars, courses, and ethics opinions surrounding these new issues, new questions, and new challenges.

These “challenges” arise from a number of factors – things like technology, globalization, and the economic crisis are driving forces in how it is that lawyers are providing legal services to their clients. The practice of law has changed. It is certainly not what it used to be. There was a time when a lawyer could practice in their own shop in their corner of the world, and a lawyer in another jurisdiction would never come to know it. Now we have what we call the spillover effect, where a regulatory development in one jurisdiction can have effects and consequences in one’s home jurisdiction.

But the reality is that the legal profession is steeped in tradition. And the profession, as a whole, has a desire to maintain its core values. As a result, regulation proves difficult and is slow to address these challenges. Lawyer regulation is not keeping up with the pace of life’s changes.

As a result, the ABA’s Ethics 20/20 Commission, created in 2009, was charged with reviewing the ABA Model Rules of Professional Conduct and examining the evolution of the practice of law and the lawyer regulation system. The Rules of Professional Conduct, at the time they were adopted, did not contemplate the legal marketplace today. After years of study, Ethics 20/20 recommended changes – although not revolutionary, they have offered much-needed guidance on a wide range of ethics issues that have been arising with greater frequency due to globalization and rapid changes in technology. Below is a highlight of some of these changes:

Technology -Competency
The new Rule 1.1 does not impose any new obligations on lawyers but it does shine the spotlight on a lawyer’s need to remain aware of technology, including the benefits and risks associated with it, as part of a lawyer’s general ethical duty to remain competent.

We no longer live in a society where lawyers can solely rely on secretaries and support staff to handle technological concerns. Lawyers need to be technologically proficient so that they are able to properly advise clients as necessary. This may mean stepping out of a comfort zone but it is absolutely necessary in this day and age.

Technology – Confidentiality
The internet has become a major part of the practice of law. Lawyers are enlightened about the possibilities that technology offers. Here are just a few ways that lawyers are using technology:

  •  Most attorneys have remote access to their office and their client files;
  •  Lawyers rely on smart phones and mobile devices to share data about their clients’ matter; and
  •  Some lawyers are using cloud based computing to store their client’s information.

Questions about ethical obligations as it relates to data privacy and security are new areas for lawyers. To address this, the new Rule 1.6 added language which states that lawyers must make “[r]easonable efforts to prevent inadvertent disclosures.” While this duty has existed under the prior rules, the modifications make clear that this affirmative duty extends to data privacy, security and reliability. Additionally, the Comments to Rule 1.6 offer further guidance on what factors are considered when determining whether an attorney has made “reasonable efforts” in securing client’s information.

Communication
Historically, when communicating with clients, lawyers would either set up a meeting, have a phone call or write a letter and send it by snail mail. Now, lawyers are using other forms of technology to better communicate with clients, i.e., e-mails, text messaging, and social media.

Lawyer mobility
Historically, lawyers typically spent their entire career with the same firm that they joined right out of law school. However, with the economic crisis and its effect on the legal market, lawyers today are changing employers several times and are looking to for ways to form new partnerships and associations. They need the ability to disclose limited information to lawyers in other firms to detect conflicts of interest. The amendment to Rule 1.6 now provides more protection to client’s confidences and gives the lawyers the ability to make lateral moves be more mobile.

Life is moving at an exponential pace. And while the ABA has made great strides to edit the Rules of Professional Conduct and make them more practical for today’s practitioner, I would encourage you all to think about the further improvements that you can recommend to address what is now becoming common practice. Embrace change. Talk to your bar association officers and regulation counsel so that these new “issues” do not ripen into misconduct.

Is Attorney Blogging a First Amendment Issue?

With so many social media platforms, more and more lawyers are finding avenues to use these platforms in their business models.[1] The Virginia courts, in the case of Hunter v. Virginia State Bar,[2] were presented with the constitutional issue of whether it was an attorney’s first amendment right to publish successful case results in a blog post on his law firm’s website, even without the disclaimer required by the Virginia State Bar Rules of Professional Conduct.[3]  The court had to consider whether the attorney’s blog website was commercial speech and whether an attorney can discuss publicly available information related to a client matter without the client’s consent. In his blog titled “This Week in Richmond Criminal Defense,” the majority of Mr. Hunter’s blog posts discussed favorable outcomes[4] received in his clients’ matters, without any disclaimers that puts case results in a context that is not misleading and explains that there are no guarantees and that each case’s outcomes depends on a number of factors. See Virginia State Bar Rule of Professional Conduct 7.1(b).  The Virginia State Bar initiated an investigation and concluded that Mr. Hunter violated the rules pertaining to lawyer advertisement, specifically, Virginia Rules of Professional Conduct 7.1, 7.2,[5] because they deemed that his advertisements were misleading and did not provide the necessary disclaimers. The Virginia State Bar also concluded that as a result of discussing client matters and revealing information that was either embarrassing or detrimental to the client without the client’s consent was a violation of Virginia Rule of Professional Conduct Rule 1.6.[6] In his defense, Mr. Hunter stated that the blog was not a legal advertisement but rather was political speech concerning the judicial system and that it was important to use the real names of his clients so as to provide his audience with an accurate description of what transpired in the legal matter. Mr. Hunter defended against the Virginia Rule of Professional Conduct 1.6 charge and stated that the information that he posted was public information that had already been disseminated.  The Virginia State Bar imposed a public admonition with terms including a requirement that Hunter remove “case specific” content from his blog and post a disclaimer as required under Virginia Rule of Professional Conduct 7.1(b). Hunter appealed to the Circuit Court for the City of Richmond and they affirmed the Third District Committee’s finding that under Virginia Rule of Professional Conduct 7.2(b), Hunter was required to post disclaimers when publishing case results. It, however, reversed the District Committee’s finding that he violated Virginia Rule of Professional Conduct 1.6 by posting embarrassing and detrimental information about his clients without their consent. The Circuit Court held that the application of Virginia Rule of Professional Conduct 1.6 violated Hunter’s First Amendment right to free speech.  The matter then went to the Supreme Court of Virginia and, in a 5-2 decision, the court affirmed the Public Admonition with terms imposed on Hunter for failing to publish the required disclaimers and rejected Hunter’s first amendment argument and held that his blog post was commercial speech. The Court did not make a finding of a violation of Virginia Rule of Professional Conduct 1.6.[7]  After having filed a petition for a writ of certiorari to the U.S. Supreme Court that was ultimately denied, Mr. Hunter entered into a consent order with the bar reinstating the public admonition with terms.

Social media is a great marketing tool that, if used ethically, has many rewarding benefits. Lawyers however, must be mindful of the pitfalls associated with social media that could result in the violation of the ethical Rules. In Maryland, the rules governing lawyer advertising are straight forward. Maryland Rule 7.1 dictates lawyers must only make truthful statements that are not misleading in their advertisements and that these statements cannot create an unjustified expectation about the results that the lawyer can achieve for a prospective client.[8] For example, a statement such as “I’ve won every jury trial I’ve ever had” may be technically true but in order for a prospective client to appreciate a lawyer’s skill-set it would be important to know that the lawyer has only had 3 jury trials. Similarly, it is a violation of Maryland Rule of Professional Conduct 7.5[9] to create a Facebook page where you state your firm name, “Dorsainvil & Associates” if in fact you are a solo practitioner and do not have any associates within your firm.

Although the Hunter case didn’t make a finding of a 1.6 violation, an attorney in Maryland must be mindful that, when making posts to various social media platforms, they may expose confidential or proprietary information in violation of Maryland Rule of Professional Conduct 1.6.[10] This is especially common when a lawyer posts specific information about a recent success in a matter such as a favorable verdict, or when a lawyer shares an anecdote about their challenges either in court, with opposing counsel, or with a difficult client. These types of posts are unauthorized disclosures that violate a lawyer’s duty to keep a client’s matter confidential as required under Rule 1.6 which states that a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, or unless there is an exception to the Rule.

So as you take to these social media platforms, be mindful of the Rules of Professional Conduct as lawyer advertising is deemed commercial speech which the bar can regulate.


[1] Lawyers are using platforms like LinkedIn, Twitter, and Facebook to share information about updates in their law firm.

[2] 285 Va. 485, ___ S.E.2d ___ (2013).

[3] Virginia State Bar Rule of Professional Conduct 7.1(b) states, “[a] communication violates this rule if it advertises specific or cumulative case results, without a disclaimer that (i) puts the case results in a context that is not misleading; (ii) states that case results depend upon a variety of factors unique to each case; and (iii) further states that case results do not guarantee or predict a similar result in any future case undertaken by the lawyer. The disclaimer shall precede the communication of the case results. When the communication is in writing, the disclaimer shall be in bold type face and uppercase letters in a font size that is at least as large as the largest text used to advertise the specific or cumulative case results and in the same color and against the same colored background as the text used to advertise the specific or cumulative case results.”

[4] In these criminal matters, Hunter’s clients were either: 1) found not guilty, 2) had their charges reduced or dismissed, or 3) entered into a plea bargain to an agreed upon disposition.

[5] The amendments effective July 1, 2013, deleted Rule 7.2.

[6] Confidentiality of Information.  Rule 1.6(a) states, “[a] lawyer shall not reveal information protected by the attorney-client privilege under applicable law or other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c).”

[7] In her majority opinion, Justice Cleo E. Powell reasoned that Hunter’s posts all dealt with public information about his cases that had concluded.

[8] Rule 7.1(a) states, “[a] lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it:
(1) Contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading; or
(2) is likely to create an unjustified expectation about the results the lawyer can achieve….”

[9] Rule 7.5 Firm Names and Letterheads states, “(a) A lawyer shall not use a firm name, letterhead, or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of Rule 7.1.
(b) A law firm with offices in more than one jurisdiction may use the same name or other professional designation in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located.
(c) The name of a lawyer holding a public office shall not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm.
(d) Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact.”

[10] Rule 1.6(a) states, “[a] lawyer shall not reveal information relating to 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).”

Preparing for a Disaster and A Lawyer's Ethical Obligations

Storm WarningWith the unpredictable weather patterns that have plagued our country earlier this year, as lawyers, we may think that the only thing that these weather systems (i.e. tornados, hurricanes, wild and flash flooding to name a few) may affect is our personal property or our vacation plans.  While storms like hurricanes are considered unusual for Maryland, we know that in recent history the rash of devastation and destruction caused by major storms, such as Hurricane Sandy and Hurricane Irene, have caused fatalities and millions of dollars in damage.

A natural disaster can shut down a lawyer’s law firm causing loss of revenue and data, prohibit access to critical client files and information, prevent access to the court system, and even cause unintentional disclosures [1]  which would result in an attorney running afoul of the ethical Rules of Professional Conduct.   In order to mitigate the risks caused by such disasters, it is prudent for a lawyer to have a disaster recovery and business continuity plan.

Many law firms do not have such a plan prepared and, unfortunately, begin to think about developing one once disaster strikes, which is oftentimes, too late. Critical aspects to a good disaster recovery and business continuity plan include taking several key steps:

  1. Analyze your data. Take a minute to analyze your office’s communication systems.  Determine what type of data your firm stores, the data’s format, and know where this data is stored. The most important data, of course, are the client files. Many lawyers keep hard copies of files stored in file cabinets, which reduces the risk of damage during some emergency systems.  However, especially in cases of flooding, it is always a good idea to have an electronic copy of this data scanned into the firm’s system.  This data may later be transmitted through several forms of electronic devices as well so it is advisable to find out from staff members where they either store or review the firm’s data.
  2. Backup your data. It is critical to the survival of your practice to back up your data. It is wise to also have an electronic database of client files either kept off-site or accessible through the cloud so that in the event of disaster, a firm can maintain client information, quickly contact the client, and establish business continuity at another location if it becomes necessary. [2]
  3. Test your Plan. No need to wait for disaster to strike to evaluate how effective your recovery plan is. If there are any vulnerable areas in your plan, make the necessary updates.  During your testing period, it will be important to get input from all of your employees to identify if there are any problems or breaches with the recovery plan. [3]
  4. Evaluate. Review the overall effectiveness of your plan. As technology is constantly changing, a continuous evaluation of your plan will require you to remain vigilant and perhaps use new software or tools which will require you to remain competent in that area. [4]

It is better to be prepared and never have the need for your disaster recovery plan then to face a natural disaster and have to start from square one.


[1] Unintentional disclosures implicates Maryland Lawyers’ Rule of Professional Conduct 1.6 (Confidentiality of Information)  which states:

  1. A lawyer shall not reveal information relating to 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).
  2. A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
    1. to prevent reasonably certain death or substantial bodily harm;
    2. to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;
    3. to prevent, mitigate, or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;
    4. to secure legal advice about the lawyer’s compliance with these Rules, a court order or other law;
    5. to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge, civil claim, or disciplinary complaint against the lawyer based upon conduct in which the client was involved or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or
    6. to comply with these Rules, a court order or other law.

[2] While backing up data, lawyers need to be mindful of their ethical obligation under MLRPC 1.6 to ensure that client matters are kept confidential. It is always advisable to review the firm’s general policies and procedures to ensure that client confidentiality is not compromised– especially if data is stored in or passes through devices such as smartphones, portable computers, tablets, I-pads, servers, or in the cloud.

[3] Communication is the most important element of disaster planning.  Communication with your employees, clients, vendors, courts, and opposing counsel is key to a successful disaster recovery plan.

[4] In 2012, the American Bar Association amended the Model Rules of Professional Conduct Rule 1.1 (Competence) and added a new provision to Comment [8] which now advises attorneys, “[t]o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”

Ethics & Social Media

The legal profession is usually the last profession to adapt to new models with regard to business development. However, with the advent of the internet and the far-reaching effects of various social media platforms, more and more lawyers are finding innovative avenues to use these platforms in their business models.

Social media is a great marketing tool that has many benefits. What’s not to love? It is an inexpensive way to provide exposure, to give lawyers name recognition, and most importantly, it generates clients. For example, lawyers are creating attorney blogs to share relevant information about their practice and recent developments in the law. Lawyers are also using platforms like LinkedIn, Twitter, and Facebook to share information about updates in their law firm. These updates include firm announcements, speaking engagements, sponsorships, successes, or any upcoming legal or community service events.  Social media can provide another form of easy access for a lawyer to communicate with other lawyers in similar professional circles, with clients, as well as with friends and family. Additionally, social media is also an easy way to perform basic due diligence and legal research when a lawyer desires additional information about an opposing party, a potential witness, opposing counsel, or any other third parties.

BusinesswomanLawyers however, must be mindful of the pitfalls associated with social media that could result in the violation of the ethical Rules. An attorney, when making a post to a social media platform may expose confidential or proprietary information. This is especially common when a lawyer posts information about a recent success in a matter such as a favorable verdict, or when a lawyer shares an anecdote about their challenges either in court, with opposing counsel, or with a difficult client. These type of posts are unauthorized disclosures and violate a lawyer’s duty to keep a client’s matter confidential as stated in Rule 1.6 which states that a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, or unless there is an exception to the Rule.

Lawyers also must adhere to their jurisdiction’s ethical Rules that deal with lawyer advertising. Lawyers must only make truthful statements that are not misleading in their advertisements and these statements cannot create an unjustified expectation about the results that the lawyer can achieve for a prospective client. See Rule 7.1. For example, a statement such as “I’ve won every jury trial I’ve ever had” may be technically true but in order for a prospective client to appreciate a lawyer’s skill-set it would be important to know that the lawyer has only had 3 jury trials. Similarly, it is a violation of the Rules to create a Facebook page where you state your firm name, i.e. “Smith & Associates” if in fact you are a solo practitioner and do not have any associates within your firm. Lastly, a lawyer should be aware that although social media makes transmission of information effortless and easier, lawyers are still prohibited from soliciting prospective clients through real-time electronic contact. See Rule 7.2.

In conclusion, social media is clearly more than just a fad. However, lawyers must exercise careful judgment when using these tools and should be aware of the issues that may arise from its use. With that said, a careful review of the ethical Rules is critical to a lawyer’s understanding of how to effectively and properly use social media platforms.

Update on the ABA's Ethics 20/20 Commission

The American Bar Association’s Commission on Ethics 20/20, the group commissioned in 2009 by then ABA President Carolyn B. Lamm, to thoroughly review the ABA Model Rules of Professional Conduct and to make necessary recommendations to revise those rules as they apply to the evolution of the legal profession as it relates to advances in technology and the globalization of the practice, has concluded its work and has made significant recommendations for revisions to the Model Rules.

The ABA Commission on Ethics 20/20 met at the ABA 2013 Mid-year meeting in Dallas, Texas in early February and the Commission successfully rallied support for sponsorship for four of its Resolutions (including support from the Young Lawyers Division for the Resolutions involving foreign lawyers).  As a result of the support as evidenced by several co-sponsorships, the ABA House of Delegates on February 11, 2013, adopted all four of the Commission’s final Resolutions. Three of those Resolutions involved a highly controversial issue – the limited practice authority for inbound foreign lawyers to practice in the United States.  The Resolutions are:

Resolution Revised 107A now amends Rule 5.5(d) of the ABA Model Rules of Professional Conduct (Unauthorized Practice of Law; Multijurisdictional Practice of Law) to permit foreign lawyers to serve as in-house counsel in the U.S., but with the added requirement that foreign lawyers not advise on U.S. law except in consultation with a U.S.-licensed lawyer;

Resolution Revised 107B now amends the ABA Model Rule for Registration of In-House Counsel to permit foreign lawyers to serve as in-house counsel in the U.S. but with added requirements ;

Resolution 107C now amends the ABA Model Rule on Pro Hac Vice Admission to provide judges with guidance about whether to grant limited and temporary practice authority to foreign lawyers to appear in U.S. courts; and

Resolution 107D amends the Comment to ABA Model Rule 8.5 to permit lawyers and clients to agree which conflict of interest rules govern the representation.

Congratulations to the Commission for three years of hard work which resulted in phenomenal changes to the rules which governs our conduct. The Commission, in its earlier Resolutions to the House which are now adopted as of August 2012, recommended several changes as they relate to technology and now has addressed the globalization of the practice which will now allow for lawyers to provide more services to clients whose needs may not be limited to our jurisdictional borders.

How does this effect Maryland? We shall soon see if our court adopts similar provisions in the Maryland Lawyers’ Rule of Professional Conduct.

Read more about the work of the Commission on the ABA website.

Dolores Dorsainvil is a Senior Staff Attorney at the Office of Bar Counsel and is an Adjunct Professor of Law at American University’s Washington College of Law where she teaches Legal Ethics.

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