American Bar Association
 
Section of International Law:

Section of International Law:


Section Comments on ABA Commission on Ethics 20/20



The ABA Commission on Ethics 20/20 was created by then-ABA President Carolyn B. Lamm to perform a thorough review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments.

The Michael Burke, Chair of the Section of International Law, would like additional comments from Section members on the Commission's August 2012 Proposals. Please submit comments to introl@americanbar.org by June 8, 2012.


ABA Comm. on Ethics 20/20: August 2012 Proposals




Confidentiality When Using Technology. To help lawyers understand how to protect client confidences when using new technology -- such as "cloud" computing, tablets and smartphones -- we propose to:
  • clarify that lawyers should take reasonable precautions to protect client confidences from inadvertent or unauthorized access or disclosure. (Model Rule 1.6)
  • identify the factors that lawyers should consider when determining whether they have taken reasonable precautions. (Model Rule 1.6)
  • clarify a lawyer's obligations upon receiving inadvertently disclosed confidential information, including information contained in electronic form. (Model Rule 4.4)
  • emphasize a lawyer's duty to keep abreast of changes in relevant technology, including the benefits and risks associated with its use. (Model Rule 1.1)
We also recommend that the ABA create a user-friendly, regularly updated website with answers to commonly asked questions about technology and confidentiality.

Using Technology for Marketing. To help lawyers understanding how the principles of the advertising rules apply to new forms of Internet-based marketing, such as pay-per-click ads and social networking sites, we propose to:
  • advise lawyers on how to use those forms of marketing without inadvertently creating a prospective client-lawyer relationship. (Model Rule 1.18)
  • clarify how the prohibition against paying others for a "recommendation" applies to online lead generation services. (Model Rule 7.2)
  • identify when a lawyer's online communication constitute a "solicitation." (Model Rule 7.3)


August 2012 Proposals continued

Outsourcing. Given the extent to which lawyers now outsource legal and law-related services, we propose to:
  • advise lawyers that, when outsourcing work to other lawyers, they must reasonably believe that the other lawyers' services will contribute to the competent and ethical representation of the client. (Model Rule 1.1)
  • advise lawyers that, when outsourcing work to nonlawyers, they must make reasonable efforts to ensure that the nonlawyers' services are provided in a manner that is compatible with the lawyer's professional obligations. (Model Rule 5.3)
Mobility. Given the increasing need for lawyers to change jobs and relocate to new jurisdictions, we propose to:
  • explain the extent to which a lawyer can disclose information to another firm in order to ensure that conflicts of interest are detected before the lawyer is hired or two firms merge. (Model Rule 1.6)
  • enable a lawyer to establish a practice in another jurisdiction while the lawyer pursues admission in that jurisdiction through one of the procedures that the jurisdiction authorizes (e.g., admission by motion). (New Model Court Rule on Practice Pending Admission)
  • allow a lawyer to qualify for admission by motion after 3 years of practice (instead of 5). (Model Rule on Admission by Motion).

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Modified by Christina Heid on May 30, 2012

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