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Practice Tip: The New Ethics Rules and You! (ABA Commission on Ethics 20/20)

This month, long awaited revisions to the ABA Model Rules of Professional Conduct were approved. These rule revisions are the result of years of study by the ABA Commission on Ethics 20/20, whose task was to evaluate the Model Rules and attorney regulation in light of the far-reaching changes technology has brought to the practice of law.

The revisions to the rules and comments all reflect an understanding of the much greater reliance on technology, electronic communication and electronically stored information in today’s law practice.

Here are the highlights.

—— Competence Regarding Technology ——

Rule 1.1 Competence. The language of the rule itself hasn’t changed. However, many commentators are saying that the change in Comment 8 is a very big deal. It adds to the definition of competence a statement that a lawyer must “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”

As John Barkett points out, “Lawyers who in the past blindly relied on third-party service providers for electronic discovery, search technology, data storage and security, cloud computing, and other technology needs will, to provide ‘competent’ representation, have to conduct a reasonable level of due diligence about what can go wrong in their use of technology to serve client needs.”[1]

Commentators are saying that making an understanding of technology an ethical duty is quite significant, and that this addition will make it harder for lawyers to claim ignorance of technology relevant to their practices when issues arise.

—— Client Confidentiality and Conflicts of Interest ——

Rule 1.6 Confidentiality of Information. Two changes of note were made to the rule regarding the confidentiality of client information. The first is the addition of subsection c, which says, “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of the client.” (See Rule 1.6(c) and Comment 18.)

Once again, it's Comment 18 to the Rule that's the real kicker. I think the context of the comment makes it clear that not only must a lawyer seek to guard against inadvertent disclosure, but the lawyer must make efforts to assure that reasonable security measures are in place to protect electronic storage of client data as well.

The other notable change to Rule 1.6 is the addition of subsection (b)(7) relating to “detecting and resolving conflicts of interest.” (See Rule 1.6(b)(7) and Comments 13 and 14.) It specifically allows the disclosure of limited information about clients as needed to identify potential conflicts in instances of attorneys changing firms, or firm mergers, and the like. The Comments elaborate on and restrict the kinds of client information that should be shared in such instances, with a view toward assuring attorney-client privilege is maintained.

Added to all this is new language in the definitions of Model Rule 1.0 and Comment 9., making clear that the screening procedures required for conflicts purposes must encompass electronically stored client information.

Rule 4.4 Respect for Rights of Third Persons. Relatedly, a change to the comments to Rule 4.4 clarifies even further a lawyer’s duties when receiving electronic documents containing metadata which the lawyer has reason to believe was included unintentionally.

—— Outsourcing, Cloud Computing, and E-Discovery Vendors ——

Rule 5.3 Responsibilities Regarding Nonlawyer Assistance. The changes here reflect the fact that law firms have increasingly found a need to outsource projects outside the office, not only to contractors, but to vendors and service providers. Changes to the comments to Rule 5.3 stress the need for lawyers to vet all such service providers to assure they can comply with the ethical obligations appropriate to the law practice.

I think the context of the new comments make it very clear lawyers have a duty to assure that any vendors, whether investigators, document management companies, e-discovery vendors, or cloud-based storage or backup vendors, are able to safeguard the confidentiality of the client data with which they are entrusted. (See Rule 5.3 and Comments 3 and 4.)

What does all this mean for us?

Obviously any ethical duties belonging to our supervising attorneys belong to legal support professionals as well. After all, we’re often at the forefront of researching, vetting and mastering new technology for our firms. And we're often the ones to work directly with those third parties to whom projects have been outsourced.These model rule amendments raise the stakes for all of us.

The new rules make it crucial that we understand any technology we’re using, and fully understand the location and accessibility of the electronic data generated, used and stored on behalf of our clients. We share in the responsibility of making sure our clients’ confidential information, whether stored on laptops, smart phones, tablets, or internet-based 3rd party servers (“in the cloud”) are secure.

Our own reputations and that of our firms may depend upon it.

What's your view? Will these new ethics rules impact you? Email me your comments, and I’ll include them in a future issue!

And for more insights on the topics of conflict checks, and inadvertent disclosures, see the Sidebar Resources!

[1] Barkett, John, June 25, 2012. ABA to Tackle Technology Issues in Model Rules at August Meeting, Law Technology News. Http://www.law.com/jsp/lawtechnologynews/PubArticleFriendlyLTN.jsp?id=12... (accessed August 28, 2012).

Daphne A. Drescher is the sole proprietor of Drescher ProParalegal. Her professional training and over 20 years of litigation experience enable her to provide knowledgeable and experienced paralegal services to attorneys and law firms in any location.

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