As a profession, lawyers and bar associations
are notoriously slow to change. Last week, the American Bar Association
considered and adopted updates to the Model Rules of Professional Conduct that
govern lawyers. The legal profession has found its way into
the Twenty-First Century and clients will benefit.
The American Bar Association’s Commission on Ethics 20/20 filed its first six recommendations with the ABA House of Delegates on May 7, 2012. These recommendations are the result of a three-year study of how “globalization and technology are transforming the practice of law and how the regulation of lawyers should be updated in light of those developments.” The Commission’s recommendations have been split into two sets of proposals with the first considered by the ABA House of Delegates at its August 2012 meeting. The other recommendations will be considered in February 2013.
The ABA stated that “technology and globalization have transformed the practice of law in ways the profession could not anticipate in 2002. Since then, communications and commerce have become increasingly globalized and technology-based. In August 2009, then-ABA President Carolyn B. Lamm created the Commission on Ethics 20/20 to tackle the ethical and regulatory challenges and opportunities arising from these 21st century realities. She charged the Commission with conducting a plenary assessment of the ABA Model Rules of Professional Conduct and related ABA policies, and directed it to follow these principles: protecting the public; preserving the core professional values of the American legal profession; and maintaining a strong, independent, and self-regulated profession.”
While the ABA’s Model Rules are not binding on lawyer until adopted by the states, the influence of changes to the Model Rules cannot be overstated. Most states usually adopt some variety of changes made to the Model Rules of Professional Conduct. Thus, look for each state to address these recommendations over the next year. There will likely be some healthy and interesting debates to come. Stay tuned.
The American Bar Association’s Commission on Ethics 20/20 filed its first six recommendations with the ABA House of Delegates on May 7, 2012. These recommendations are the result of a three-year study of how “globalization and technology are transforming the practice of law and how the regulation of lawyers should be updated in light of those developments.” The Commission’s recommendations have been split into two sets of proposals with the first considered by the ABA House of Delegates at its August 2012 meeting. The other recommendations will be considered in February 2013.
The ABA stated that “technology and globalization have transformed the practice of law in ways the profession could not anticipate in 2002. Since then, communications and commerce have become increasingly globalized and technology-based. In August 2009, then-ABA President Carolyn B. Lamm created the Commission on Ethics 20/20 to tackle the ethical and regulatory challenges and opportunities arising from these 21st century realities. She charged the Commission with conducting a plenary assessment of the ABA Model Rules of Professional Conduct and related ABA policies, and directed it to follow these principles: protecting the public; preserving the core professional values of the American legal profession; and maintaining a strong, independent, and self-regulated profession.”
August 2012 Adopted Changes
Rule 1.1 requires that a lawyer
provide “competent representation to a client,” which “requires the legal
knowledge, skill, thoroughness and preparation reasonably necessary for the
representation.” The
Comment to Rule 1.1 was amended to state that a lawyer’s competence must now
include knowledge of “the benefits and risks associated with relevant
technology.” No longer can
a lawyer claim ignorance. The
fundamental principle of competence now requires a lawyer to know and keep
apprised of how technology impacts her practice and her representation of the
client.
The ABA added the following
language to Rule 1.6 which governs a lawyer’s duty to keep information
confidential: “A lawyer
shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or
unauthorized access to, information relating to the representation of a
client.” In Comment 16, the
ABA clarified that this new language in the rule means:
“The unauthorized access to, or
the inadvertent or unauthorized disclosure of, information relating to the
representation of a client does not constitute a violation of paragraph (c) if
the lawyer has made reasonable efforts to prevent the access or disclosure.
Factors to be considered in determining the reasonableness of the lawyer’s
efforts include, but are not limited to, the sensitivity of the information,
the likelihood of disclosure if additional safeguards are not employed, the
cost of employing additional safeguards, the difficulty of implementing the
safeguards, and the extent to which the safeguards adversely affect the
lawyer’s ability to represent clients (e.g., by making a device or important
piece of software excessively difficult to use). A client may require the lawyer
to implement special security measures not required by this Rule or may give
informed consent to forgo security measures that would otherwise be required by
this Rule. Whether a lawyer may be required to take additional steps to
safeguard a client’s information in order to comply with other law, such as
state and federal laws that govern data privacy or that impose notification
requirements upon the loss of, or unauthorized access to, electronic
information, is beyond the scope of these Rules.”
In its amendments to Rule
4.4(b), the ABA concluded that electronically stored information should be
treated like other documents. Now,
“[a] lawyer who receives a document or electronically stored information
relating to the representation of the lawyer’s client and knows or reasonably
should know that the document or electronically stored information was
inadvertently sent shall promptly notify the sender.”
In Comment 2 to Rule 4.4, the ABA added that “A document or electronically stored information is inadvertently sent when it is accidentally transmitted, such as when an email or letter is misaddressed or a document or electronically stored information is accidentally included with information that was intentionally transmitted.” “Metadata” is included in the types of electronically stored information that may be inadvertently disclosed. However, metadata in electronic documents "creates an obligation under this Rule only if the receiving lawyer knows or reasonably should know that the metadata was inadvertently sent to the receiving lawyer.”
Conclusion
In Comment 2 to Rule 4.4, the ABA added that “A document or electronically stored information is inadvertently sent when it is accidentally transmitted, such as when an email or letter is misaddressed or a document or electronically stored information is accidentally included with information that was intentionally transmitted.” “Metadata” is included in the types of electronically stored information that may be inadvertently disclosed. However, metadata in electronic documents "creates an obligation under this Rule only if the receiving lawyer knows or reasonably should know that the metadata was inadvertently sent to the receiving lawyer.”
The ABA
also tackled issues relating to Outsourcing and Technology and Client
Development. Those issues will be addressed in another article.
Conclusion
While the ABA’s Model Rules are not binding on lawyer until adopted by the states, the influence of changes to the Model Rules cannot be overstated. Most states usually adopt some variety of changes made to the Model Rules of Professional Conduct. Thus, look for each state to address these recommendations over the next year. There will likely be some healthy and interesting debates to come. Stay tuned.
No comments:
Post a Comment