Foresight is 20/20

Ethics 20/20Lately I have been thinking about the effects of technology on the issues of civility in the legal profession.

Because at the Commission on Professionalism we promote professionalism in a forward-looking manner, we can’t help but consider technology.  Technology has wrought rapid and transformative changes.  To advocate for a return to practicing law by the same tools used by Abraham Lincoln would be irresponsible.  Instead, we promote embracing and leveraging technology to make the practice of law more effective for our clients and more rewarding for our lawyers.  That’s why I am psyched about the work of the ABA’s Ethics 20/20 Commission.

The ABA’s Ethics 20/20 Commission has been studying how the Model Rules of Professional Conduct might need to be amended to respond to changes in technology and the increasingly global nature of the practice of law.  Ethics 20/20 has issued a series of proposals for public comment, as well as informational reports and white papers. I encourage all lawyers to review the various proposals and supporting reports and to provide your reactions and feedback.

Here are some of the interesting proposals that are in the hopper:

Amendment to Rule 5.5: allowing an attorney to practice in a jurisdiction he or she is not yet admitted to, by either physically relocating or through a virtual office, for no more than one year under certain specific conditions.

Amendment to Rule permitting Admission by Motion: changing the requirement that an attorney must actively practice law for the 5 years immediately preceding the application date in a new jurisdiction to three of the seven years preceding the application date.

Amending several rules to allow for greater flexibility in alternative law practice structures, i.e. fee sharing between lawyers and non-lawyers and resolving the related choice of law issues.

Adding comments to several rules regarding outsourcing: outlining an attorney’s responsibilities when outsourcing work to lawyers and non-lawyers.

Amending Rule 1.6: allowing an attorney, who has a reasonable possibility of associating with a new firm, to disclose limited confidential client information for the sole purpose of conflicts checking.

 On Thursday, February 2, 2012, I will be at the ABA meeting in New Orleans.  I will be one of many folks testifying at one of the Ethics 20/20 public hearings designed to garner perspectives on these proposals.  The crux of my testimony is:

I am very much in favor of the proposals generated by the Ethics 20/20 Commission related to technology and confidentiality.  These proposals acknowledge that lawyers have new ways of communicating and practicing that are not defined by physical location.  In order to be effective going forward, it is essential that seasoned lawyers be encouraged and younger lawyers be educated, so the profession may ethically embrace and integrate technology into modern legal practice.

I often hear lawyers say, “Once this current economic recession is over, things will go back to the way they have been for the last 20, 30 or more years.”  Many lawyers do not appreciate that the economic challenges facing the legal profession have been largely wrought by changing technology.  There is still a general attitude expressed anecdotally and informally, that if individual practitioners and the profession in general can just hunker down and weather the storm, then it will pass and all will return to the status quo.

This attitude is misguided, there is no going back, and the storm will not pass.  The data shows that the demand for legal services had begun to slow well before the current economic recession hit.

Unless lawyers begin immediately to understand and adjust to the cataclysmic effects of technology and its cousin globalization: we may cease to be relevant as professionals to the great detriment of our society.   Technology can promote diversity in the profession by leveling the playing field, improving access to justice and better promoting the ideals of democracy.  We must fight against our natural inclination and training to revere precedent and to minimize risks in order to embrace the opportunities that technology offers.

The Commission on Professionalism is able to communicate this message through various initiatives, including encouraging the development of quality professional responsibility Continuing Legal Education programs (CLE).   The Commission’s responsibilities include reviewing all professional responsibility CLE programs and assisting providers in the development of quality programming.  We strongly encourage the development of programs supporting the positive opportunities presented by technology and the over-arching importance of innovation and creativity in our profession.  Unfortunately, these types of programs are sometimes seen by providers and lawyers alike as less important, “soft” and not directly related to the practice of law.

Accordingly, I am enthusiastic about the proposed amendment to comment 6 of Rule 1.1 that would explicitly state that maintaining competence requires a lawyer to keep abreast of changes in the practice of law, “including the benefits and risks associated with technology.”  I also am in favor of the related admonition in proposed Rule 1.6(c) stating: “A lawyer shall make reasonable efforts to prevent the unintended disclosure of, or unauthorized access to, information in relation to the representation of a client.”  These proposed amendments to the Rules and the related Comments make it clear that lawyers need to understand and utilize technology in order to ethically practice law in the 21st century.

These additions will support the Commission on Professionalism’s ability to more effectively encourage CLE providers to develop educational courses consistent with the spirit and the work of the Ethics 20/20 Commission and to better equip lawyers to be meaningful players in our 21st century society.

Lawyers need to be enlightened and reinvigorated about the opportunities and promises that technology can bring to our profession.

On Friday February 3, I will be attending the ABA’s public hearings on judicial disqualification based on campaign contributions to an elected judge.  Significant issues are affecting our profession; more now than at any other time I recall in the nearly 30 years I have been a lawyer. Please join the debate and shape the future.  If you cannot attend the public hearings personally, follow me on Twitter at @ILSCCP and I will keep you informed.


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