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.

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What is Good Communication?

One of the most common grievances that clients lodge against attorneys is an attorney’s failure to adequately communicate with them.  While the Maryland Lawyers’ Rules of Professional Conduct[1] does not define the term “adequate communication,” attorneys should take the time to determine what that term means for their practice as communication is the key to establishing and maintaining a good attorney-client relationship. As such, it is a good idea to implement an office practice that is communicated to the client early in the representation. For example, it is a good office practice to inform a new client that telephone calls are returned within a certain time period (e.g, a 24 hour period, or 1-2 business days).  Another good office practice that some attorneys implement is to send their clients a carbon copy of all pleadings and correspondence in the client’s matter as way to keep them informed of the status of a litigation.

In our technology driven world, many attorneys communicate with clients in a multitude of ways: telephone calls, letters, e-mail, instant messaging, Skype and the like.  However, the most effective and recommended way to communicate with a client is by way of a carefully drafted letter.  It is perhaps the best method to convey important information to the client with regard to their legal matter, especially if it requires the client to make a decision about a recommended course of action.  This is because communications made by telephone or e-mail can sometimes be made with haste and may be later forgotten or misconstrued by the client. However, creating a well written letter (copied to the file) that requires the attorney to reflect on the legal advice or information given to the client, not only benefits the client, but also, serves as a level of protection for the attorney as well in the event that a disagreement about the information conveyed or misunderstanding between the parties should occur. Written communications should be made to the client throughout the course of the representation. The representation should start with the initial engagement letter/fee agreement that sets forth the scope of the representation and the rate or basis of the fee.  If there are important developments in a client’s matter (settlement offer, upcoming court date, expert witness fees needed) or some other important information that the attorney needs to share with the client (change in office address or contact information, attorney on extended vacation, attorney closing their practice), it should always be in writing. The representation should also end with a termination/closing letter notifying the client that the matter is either resolved or that the attorney is terminating the relationship.

An attorney that takes the time to develop a good office procedure with regard to how he or she communicates with their clients will not only make for a more efficient practice but will also ensure that the attorney does not run afoul of the Rules of Professional Conduct.

The Lawyers’ Rules of Professional Conduct are now available via new mobile apps  for the iPhone, iPad, Android and Blackberry, a project of the Young Lawyers’ Section.


[1] Maryland Lawyers’ Rules of Professional Conduct  Rule 1.4 (Communication) states:

(a)  A lawyer shall:

(1)  promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(f), is required by these Rules;

(2)  keep the client reasonably informed about the status of the matter;

(3)  promptly comply with reasonable requests for information; and

(4)  consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Maryland Lawyers’ Rules of Professional Conduct or other law.

(b)  A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

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