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.

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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