New ABA Ethics Commission Filing – Taking the Practice of Law into the 21st Century
On May 7, the ABA Commission on Ethics submitted a series of technology-related proposals to the House of Delegates. These first six proposals for ABA Model Rules updates were the result of a three year study on the impact of technology and globalization on the practice of law. If approved, this will be the first major technology-centric Model Rules update in over ten years – since the launch of the mobile flip phone – so it can be viewed as a significant event.
The ABA House of Delegates will review the proposals in August. The Georgia Bar tends to pick up, review and adopt ABA Rule changes if deemed necessary. If that is again the case, these changes may impact your firm in the future. Here is a first glimpse at the proposed ABA Model Rules changes, so you can start thinking about what may be required of your firm. Even if not later required under the Georgia Rules of Professional Conduct, a careful review of the ABA proposals could lead your firm to implement some procedural changes.
Technology and Confidentiality Proposal
- Proposed Rule changes impact law firm communication, data storage and security, client confidentiality and privacy.
- Recognizes electronic communication and data storage are now normal business processes.
- Outlines obligations to protect data, while acknowledging that we can’t guarantee electronic security any more than physical security.
- Acknowledges in Model Rule 1.1 (Competence) that technology is an integral aspect of law practice, and lawyers should understand the benefits and risks.
Technology and Client Development Proposal
- Clarifies how electronic communication can create, impact, and even disqualify client relationships.
- Updates language to define advertising in the information age, especially as it relates to pay-per-click and pay-per-lead services. Note that you still need to observe fee-sharing restrictions.
- Confirms that ads automatically generated in response to internet searches are not “solicitations.”
The other proposals address topics including lawyer mobility (whether moving to another firm or another state) and outsourcing as an authorized practice of law. Here is the Commission’s Introduction and Overview document if you would like to read more about the proposed changes. Based on your feedback, I may provide more information about the other proposals in a follow-up article.
The Commission asked for its own website to address constantly evolving ethical issues, a great 20th century application of technology that is long overdue.
The Commission also confirmed that our current state-based judicial regulation of our profession still works in the “modern environment.” No centralization of judicial regulation yet.
So while iPhones aren’t yet mandated by the Georgia Bar, it’s a good time to review how we can most effectively, efficiently, and securely utilize technology to benefit our clients.
