What’s New in Ethics

By Terry Houston, PP Emerita, 2012-2013 Chair, NALS Ethics Series Task Force

The NALS Ethics Series is taking a new tact this year, redirecting its focus to current ethics issues that apply to everyone employed in the legal industry, lawyers and nonlawyers alike. What has been interesting about the research for this article is the recognition that the concept of ethics is an ongoing and evolving consideration, a concept that does not always relate to the viewpoint of “new.” Our ethical guidelines have been with us long before the American Bar Association (ABA) first proposed its Canons of Professional Ethics (Canons) in 1908, which were revised in 1969 as the Model Code of Professional Responsibility, and revised again in 1983, 2002, and 2007 as the Model Rules of Professional Conduct (Model Rules). The original canons and the modifications that followed are the ABA’s effort to concisely define the concept of ethics and to describe it in words that we can all understand.

Ronald Rotunda offered insightful comment in the preface to his eighth edition of Professional Responsibility (a NALS-designated study volume for PLS and PP candidates): “It is said that the future will bring us not only more change but also an increase in the rate of change.” We can appreciate the wisdom of his remark when we note that the initial version of the Canons was observed unchanged for 61 years but, once they were revised in 1969, there was seen a need to revise them again after only 14 years, in 1983, into the current form of the Model Rules. Those revisions were observed intact for 19 years until the ABA revised them in 2002 and again five years later in 2007. Since 2007, revisions have been adopted nearly every year.

After having seen the need for two sets of changes in 2009, then ABA president Carolyn B. Lamm established the Commission on Ethics 20/20 (Commission) “to perform a thorough review of the Model Rules and of the United States system of lawyer regulation in the context of advances in technology and global legal practice developments.”1 As of May 2012, the Commission had proposed changes in six primary areas of the Model Rules:

  • Technology and Confidentiality
  • Technology and Client Development
  • Outsourcing
  • Practice Pending Admission
  • Admission by Motion
  • Model Rule 1.6 (Detection of Conflicts of Interest)

In August 2012, at the ABA’s Annual Meeting in Chicago, the ABA’s policy-making House of Delegates voted to approve changes in all six areas. Here is a brief digest of the changes involving technology. We will review other changes in future editions of “What’s New in Ethics.”

Rule 1.0 Terminology. The word “e-mail” has been replaced by the phrase “electronic communications” in Subsection (n):

(n) ‘‘Writing’’ or ‘‘written’’ denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or video recording, and electronic communications. A ‘‘signed’’ writing includes an electronic sound, symbol, or process attached to or logically associated with a writing and executed or adopted by a person with the intent to sign the writing.

The word “materials” has been replaced by the phrase “information, including information in electronic form” in the conflicts screening subsection:

To implement, reinforce, and remind all affected lawyers of the presence of the screening, it may be appropriate for the firm to undertake such procedures as a written undertaking by the screened lawyer to avoid any communication with other firm personnel and any contact with any firm files or other information, including information in electronic form, relating to the matter, written notice and instructions to all other firm personnel forbidding any communication with the screened lawyer relating to the matter, denial of access by the screened lawyer to firm files or other information, including information in electronic form, relating to the matter, and periodic reminders of the screen to the screened lawyer and all other firm personnel.

Rule 1.1 Competence. The phrase “including the benefits and risks associated with relevant technology,” was added to Subsection [6] requiring lawyers to keep abreast of changes in the law and its practice.

Rule 1.4 Communication. The sentence “Client telephone calls should be promptly returned or acknowledged” was replaced by the sentence “A lawyer should promptly respond to or acknowledge client communications.”

Rule 1.6 Confidentiality. Subsection (c) was added: “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.”

The accompanying commentary Acting Competently to Preserve Confidentiality was significantly augmented to ensure the safeguarding of client information from unauthorized access by third parties:

[16] Paragraph (c) requires a lawyer to act competently to safeguard information relating to the representation of a client against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons or entities who are participating in the representation of the client or who are subject to the lawyer’s supervision. See Rules 1.1, 5.1, and 5.3. 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. 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. For a lawyer’s duties when sharing information with nonlawyers outside the lawyer’s own firm, see Rule 5.3, Comments [3]-[4].

Rule 4.4 Respect for Rights of Third Persons. Subsection (b) was amended to include the phrase “or electronically stored information” with regard to documents:

(b) 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.

The accompanying Commentary was also significantly augmented to encompass electronic information:

[2] Paragraph (b) recognizes that lawyers sometimes receive a document or electronically stored information that was mistakenly sent or produced by opposing parties or their lawyers. 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. If a lawyer knows or reasonably should know that such a document or electronically stored information was sent inadvertently, then this Rule requires the lawyer to promptly notify the sender in order to permit that person to take protective measures. Whether the lawyer is required to take additional steps, such as returning the document or electronically stored information, is a matter of law beyond the scope of these Rules, as is the question of whether the privileged status of a document or electronically stored information has been waived. Similarly, this Rule does not address the legal duties of a lawyer who receives a document or electronically stored information that the lawyer knows or reasonably should know may have been wrongfully inappropriately obtained by the sending person. For purposes of this Rule, ‘‘document or electronically stored information’’ includes, in addition to paper documents, email and other forms of electronically stored information, including embedded data (commonly referred to as “metadata”), that is subject to being read or put into readable form. 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.

[3] Some lawyers may choose to return a document or electronically stored information unread, for example, when the lawyer learns before receiving it that it was inadvertently sent to the wrong address. Where a lawyer is not required by applicable law to do so, the decision to voluntarily return such a document or electronically stored information is a matter of professional judgment ordinarily reserved to the lawyer. See Rules 1.2 and 1.4.

In their report to the ABA House of Delegates, Commission co-chair attorneys Jamie S. Gorlick and Michael Traynor commented that though advances in technology have enabled lawyers in all practice settings to provide more efficient and effective legal services, some forms of technology present certain risks, particularly with regard to clients’ confidential information. One of the objectives of the Commission has been to develop guidance for lawyers regarding their ethical obligations to protect this information when using technology and to update the Model Rules to reflect the realities of a digital age.

In addition to recommending these modifications to the Model Rules, the Commission also recommended asking the ABA Center for Professional Responsibility to work with relevant entities within the ABA to create a centralized user-friendly website with continuously updated, detailed information about confidentiality-related ethics issues arising from lawyers’ use of technology. These resources are now available to ABA members at http://www.americanbar.org/groups/departments_offices/legal_technology_resources.html and http://apps.americanbar.org/dch/committee.cfm?com=EP024500.

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