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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Noisy Withdrawals and Rule 1.6 (Confidentiality)

A client stands accused of a violent crime that has caught significant media attention. The case, a sensational one, has the lawyer at odds with his client and, to make matters worse, has provided for a difficult working relationship. The lawyer contemplates terminating the attorney-client relationship but is not certain how to do so.

Then he gets a great idea.  The lawyer will convene a press conference and announce to the several media outlets in attendance that he is parting ways with the accused.  At the press conference, the lawyer goes further, and ends up revealing some of the frustrating aspects of the representation.  The lawyer discloses that his client has gone “rogue,” that he had difficulty communicating with his client and, to illustrate that point, he shares the fact that the client has not returned his telephone calls, e-mail messages, or text messages in several days. The lawyer also states that although he believes in his client’s innocence, he is concerned about the client because he believes the client may suffer from mental health issues.

Harmless enough, right? Wrong.

Here is another scenario:  A lawyer realizes that she has been retained by what some may refer to as “the client from hell.”  In addition to being generally disagreeable, the client will not follow any of the lawyer’s advice or counsel and has taken to a course of action all on her own. To top off this frustrating relationship, the lawyer’s client has failed to pay the lawyer for a great amount of time spent providing legal services, including attendance at several court hearings. The client has not even acknowledged any of the past invoices billed on the legal matter, and has lied to the lawyer about paying the bill.  The lawyer decides that she will terminate the relationship and withdraw from the matter.

The lawyer files a motion to withdraw with the court and in it, she explains, in great detail, her reasons for the withdrawal.  The lawyer does this because she assumes that there is a greater likelihood that the court will grant the motion if the court understands the difficult circumstances which the lawyer faced representing “the client from hell.” The more information that the court has, the more likely that they will grant the relief sought.

Makes sense, right? Wrong.

A client may terminate the attorney-client relationship at any time for any reason. However, a lawyer may terminate the representation only for the reasons set forth in Rule 1.16(a) and 1.16(b) (Declining or Terminating Representation) of the Maryland Lawyers’ Rules of Professional Conduct.  When deciding whether a lawyer can safely withdraw from a representation, or to better understand the instances when a withdrawal from a representation is a mandatory duty placed on the lawyer or whether it is permissive, a lawyer should read this Rule as it delineates the proper procedure for withdrawing from a representation.  It is imperative for a lawyer who is contemplating ending a relationship, even an antagonistic one, to remember, to take care to protect the client’s interests.  If a lawyer chooses to end the relationship by way of either course of action described above, he or she has engaged in ethical misconduct.   Maryland Rule 1.16(b) states, in pertinent part, “…[a] lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client . . . .”  The Rules prohibit a lawyer from painting a client in a negative light (even if the information is technically true) and/or revealing the intricacies of the attorney-client relationship as this could cause a material adverse effect on the client’s interests.  Further, this conduct may also violate Maryland Rule 1.6 (Confidentiality of Information) which prohibits a lawyer from disclosing a client’s confidence or secret. As you know, trust is the hallmark of an attorney-client relationship, therefore, in the example of calling for a press conference, the lawyer’s conduct is fraught with peril in that, by doing so, in addition to violating a client’s trust and confidence, negative attention could be brought to the client’s legal matter which may cause legal harm to the client.

The second scenario mentioned is what is referred to as a “noisy withdrawal” – the filing of a motion with a court that reveals a client’s confidence or secret.  Comment [3] to Maryland Rule 1.16 provides guidance to practitioners who may find themselves in an unenviable situation where they may have to file a motion to withdraw from a matter. A lawyer may cite “irreconcilable differences” between the lawyer and the client as the basis for the need to terminate the relationship.  If the court requires further explanation for the withdrawal, a lawyer should think about ways to ensure the that he/she keeps the client’s confidentiality as well as comply with the ethical Rules by either filing a motion under seal or requesting an in camera review.[1]

Determining whether or not to terminate a representation can be a very tough decision. But when faced with this tough decision,  a lawyer should always consult the Maryland Lawyers’ Rules of Professional Conduct because a lawyer’s duty to preserve the client’s interests and confidences continues even when the representation does not.  See also Maryland Rule 1.9 which discusses duties owed to former clients.


[1] When a matter is pending before a court, a lawyer must get the permission of the court as a prerequisite to withdraw. See Maryland Rule 1.16(c).

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