By Joan C. Rogers
The ABA Commission on Ethics 20/20 Feb. 21 released final revised drafts of proposals for amending model rules that it will present for consideration by the ABA House of Delegates at the bar group's annual meeting in August.
The six groups of proposals recommend changes to the Model Rules of Professional Conduct in light of advancing technology and increased cross-border practice. They address a wide range of subjects, including outsourcing of work, conflicts-checking, safeguarding client confidences, and getting admitted to practice after moving to a new location.
The new drafts incorporate changes that the commission decided to make when it reviewed comments on previous drafts during its meeting earlier in February. See 28 Law. Man. Prof. Conduct 102; 28 Law. Man. Prof. Conduct 103. For example:
• As many commenters requested, the commission broadened the scope of a proposed new exception that allows disclosure of client information for conflicts-checking, so that the exception extends to situations beyond lateral moves of lawyers from firm to firm.
• Responding to comments on its outsourcing proposals, the commission softened a sentence that some feared would obligate lawyers to vet legal work outsourced to lawyers in other firms.
• In connection with a proposed new duty to safeguard client confidences when using technology, the commission added new commentary making clear that the unintended exposure of information in itself does not violate the rule if a lawyer took reasonable precautions to guard against the disclosure or unauthorized access.
The commission requested that any comments on the drafts be submitted by April 2 so that it can review them during its next meeting in mid-April. Soon after that, the commission will finalize the proposals to pass along to the delegates.
In a cover letter announcing the proposals, Co-chairs Jamie S. Gorelick and Michael Traynor said that the commission is still studying several issues that could result in proposals on other subjects, including choice-of-rules provisions, nonlawyer participation and fee sharing in law firms, and inbound foreign lawyers. The commission will decide later this year whether to make formal proposals on those subjects and, if so, will submit them for delegates' consideration in February 2013, they said.
The ABA launched the commission in August 2009 to review ethics rules and lawyer regulation in light of increasing globalization and advancing technology. See 25 Law. Man. Prof. Conduct 418. The commission put out a summary of its recommendations in December.
In the final draft proposals on outsourcing, the commission softened the wording of proposed new Comment  to Model Rule 1.1 on competence. That new comment addresses a lawyer's ethical duties when a portion of a client's legal work is outsourced to a lawyer in another firm.
As revised, the draft states that “When using the services of nonfirm lawyers in providing legal services to a client, a lawyer also should reasonably believe that such services meet the standard of competence under this Rule.” The previous draft said that lawyers “must” reasonably believe that the services are performed competently.
The wording was changed from “must” to “should” because some commenters expressed concern that the sentence as written might be construed to impose on lawyers an unnecessary obligation to ensure that the work of a lawyer in another firm was competent. “The Commission agrees that, in many circumstances, it will be reasonable to rely on the work performed by nonfirm lawyers without independently confirming that that work was performed competently,” Gorelick and Traynor stated in their letter.
The revised draft makes a number of changes to the commission's proposal for a new provision in Model Rule 1.6 (confidentiality) that would permit lawyers to disclose client information to detect conflicts of interest.
The original proposal had limited this new exception to situations involving lateral moves, but many commenters noted that the issue can arise in other situations such as law firm mergers or the sale of a law practice. Accordingly, the commission broadened the scope of the exception.
It also revamped the accompanying comment in several ways, including a more detailed description of the protections that firms should put in place when receiving client information for conflicts-checking purposes. The revised comment identifies several additional pieces of information that can be disclosed to permit an accurate conflicts check. (See box.)
The commission previously proposed adding to Rule 1.6 a new paragraph (c) that obligates lawyers to take reasonable measures to protect a client's confidential information.
As worded in earlier drafts, this new provision spoke of safeguarding client information from two problems: inadvertent disclosures and unauthorized access. The revised draft refers to three distinct dangers: inadvertent disclosures, unauthorized disclosures, and unauthorized access.
The final draft also includes a new sentence in Comment  stating that “The unauthorized access to, or the inadvertent or unauthorized disclosure of, confidential information does not constitute a violation of paragraph (c) if the lawyer has made reasonable efforts to prevent the access or disclosure.”
For Model Rule 4.4(b), the commission's latest draft reverts to the original phrase “inadvertently sent” rather than “not intended to be disclosed,” as the commission previously proposed. A new sentence has been added to Comment  to define the kinds of mistakes that are covered by the rule.
In a group of proposals geared to the interplay between technology and acquiring new clients, the commission added language to Comment  to Model Rule 7.2 on advertising, to say that services that generate leads for lawyers should “affirmatively state” they are not recommending a lawyer.
Moreover, the committee revised language in Comment  to Model Rule 1.18 on prospective clients, to make clear that prospective client relationships can arise not only when a client initiates communications with a lawyer but also when a lawyer initiates communications with a potential client.
For example, the cover letter explains, a prospective client relationship can arise if a lawyer sends someone an e-mail offering representation and asking for confidential information and the person responds, sending sensitive information.
The commission previously proposed that Model Rule 5.5 be amended to allow lawyers licensed in a U.S. jurisdiction to establish a practice in another U.S. jurisdiction while pursuing admission there.
The commission concluded that this idea is worth pursuing but that it should take the form of a model court rule. Accordingly, the latest proposals include a standalone Model Court Rule on Practice Pending Admission.
The latest drafts include two minor changes to the commission's proposal to amend the Model Rule on Admission by Motion. Because of generally widespread support for reducing the required time in practice for admission on motion from five years to three, the commission removed the brackets that would have surrounded the number 3.
In addition, the commission added a phrase to make clear that practice pursuant to the Model Rule on Practice Pending Admission does not count towards the durational practice requirement necessary to qualify for admission by motion.
The Ethics 20/20 Commission's Feb. 22 proposals are available at http://www.americanbar.org/Ethics2020.
The ABA/BNA Lawyers’ Manual on Professional Conduct is a joint publication of the American Bar Association Center for Professional Responsibility and Bloomberg BNA.
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