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Ethics Byte

ABA Model Rules reflect technology, globalization

By Diane Karpman

Diane KarpmanOn Aug. 6, 2012, the House of Delegates of the American Bar Association modified the ABA’s Model Rules of Professional Conduct. It should be noted that the ABA’s rules are not completely enacted as written in any “model state,” but they are considered highly influential guidance when states update their own idiosyncratic Rules of Professional Conduct.

In California, the ABA Model Rules of Professional Conduct may be considered as a collateral source, particularly regarding issues for which there is no direct authority, as long as there is no conflict with California public policy. State Compensation Insurance Fund v. WPS Inc. (1999) 70 Cal. App. 4th 644, 656.

Unfortunately, in California, changes to the Rules of Professional Conduct seem to be languishing in some sort of bureaucratic limbo, despite the fact that the ABA has modified its rules two or three times to reflect the tremendous changes brought on by technology and globalization in the practice of law. For instance, earlier this month, the ABA House of Delegates approved rule changes involving topics such as outsourcing, confidentiality when using technology, using technology to market legal services and reducing the amount of time a lawyer must be practicing for admission by motion in a new jurisdiction.  

Let’s consider some of the more interesting proposals from the ABA’s three-year-old Ethics 20/20 Commission, and their impact on our practices. Computers have revolutionized just about every aspect of life, and the impact on the legal profession has been extraordinary.

“Technology affects nearly every aspect of legal work, including how we store confidential information, communicate with clients, conduct discovery, engage in research, and market legal services,” the 20/20 Commission wrote. In an ABA survey, 80 percent of respondents said they start their legal research by going to online sources; and fewer than half use print materials regularly. That is a remarkable change. “Legal research is now regularly and often more efficiently conducted online,” the ABA acknowledges in its Legal Technology Survey report.

Inherent in our duty of competency is the obligation to keep up to date with changes in the law and this now includes, “the benefits and risks of relevant technology.” (ABA Report 105(A), page 2) No, you don’t have to become an IT specialist, but at this point you need to be able to communicate by email and conduct basic research online. (See: GPSolo Magazine,December 2003, “Techno Ethics: When It’s NOT Better to Give Than to Receive”)

At an MCLE program over the weekend, some veteran lawyers were surprised by this information, because, they said, they all have someone in the office who can do that stuff for them. That is no longer sufficient. The standard of care regarding technology is radically changing, and the ABA’s articulation involving competency merely reflects what already exists in practice.

Another change in the Model Rules involved modifying a lawyer’s duty of confidentiality. This permits disclosure of reasonably necessary client information “to detect and resolve conflicts of interest arising from the lawyer’s change of employment, or from the changes in the ownership of the firm, but only if such disclosures would not compromise attorney-client privilege or otherwise prejudice the client.” (ABA Report 105 (A).) Specifically, lateral hires would be permitted to engage in limited disclosure to clear conflicts. This is the first modification of the fundamental duty of confidentiality that is not “client centered,” as it focuses on lawyers’ needs and law firm convenience. Many argued that a client’s consent could take care of this issue, but that may be troublesome or inconvenient to lawyers. Now, it appears that the business of law firms sometimes can trump the duty of client confidentially.

The ABA also has attempted to clarify Model Rule 4.4, which addresses procedures for inadvertently disclosed information. The protocol for the receipt of inadvertently sent information is still in a state of flux, although most states no longer require that the recipient “return” the information. In most states, including California, the settled and proper course of action is notification of receipt. The lawyer also must guard against widespread dissemination of the information, which increasingly can result in disqualification

Members of the Ethics 20/20 Commission tasked with creating the changes and considering updating the Model Rules indicated that the above proposals were the “easy” changes, and that more significant and controversial changes will be expected when they once again bring revisions to the House of Delegates in February. This still may occur before the long-anticipated California changes are made.

In other news, last month we discussed the admission of Sergio Garcia to the California Bar.  A few weeks ago, the Department of Justice filed a brief opposing Garcia’s admission, arguing that it would violate a 1996 federal immigration law. Mr. Garcia is not able to reap any benefit from the Obama Administration’s new DREAM Act policy, because he doesn’t qualify, but one might think the concepts behind the act could assist him.

In June, I wrote that State Bar Court reported decisions are not freely available to lawyers in California. I complained that, despite the fact that we pay for the entire system, we don’t get to know about the results in the cases. “Unpublished cases” can be found online, but not the published opinions, which only exist in the State Bar Court Reporter. You may have noticed that in an editor’s note at the end of my article, the State Bar stated it was working on this issue. Good to know.

And congratulations to Gary Green’s “Big Band of Barristers,” (a division of the Los Angeles Lawyers Philharmonic) for coming in first in the Battle of the Bands at the ABA meeting in Chicago. With Justice Arthur Gilbert on the piano, how could they lose? 

Legal ethics expert Diane Karpman can be contacted at 310 887-3900 or