ABA Adopts Changes to Model Rules of Professional Conduct

The House of Delegates of the American Bar Association approved a series of changes to the Model Rules of Professional Responsibility. The recommended changes address four areas – confidentiality when using technology, use of technology in marketing, outsourcing, and changes relating to the need for lawyers to change jobs and relocate to new jurisdictions.

Regarding confidentiality issues raised by new technology such as “cloud” computing, tablets, and smart phones, the ABA adopted the following changes:

- Add to the comment on Rule 1.1, Competency, that a lawyer’s duty of competence includes keeping abreast of changes in benefits and risks associated with new technology.

- Add to the comment to Rule 1.4, Communication that a lawyer has a duty to respond promptly to all “client communications,” not just “telephone calls.”

- Add to Rule 1.6, Confidentiality, a new subparagraph (c) requiring a lawyer to make reasonable efforts to protect client confidences from inadvertent or unauthorized access or disclosure.

- Add to Rule 4.4, Rights of Third Persons, language clarifying that the obligation to notify the sender of the receipt of inadvertently sent documents applies also to electronic information.

As to issues regarding technology in client development, legal marketing and communications, the new provisions include:

- Extensive additions to the comments on Rule 1.18, Prospective Clients, offer guidance to lawyers on how to use new forms of Internet-based marketing, such as pay-per-click ads and social networking sites, without inadvertently creating a prospective client-lawyer relationship.

- Amend Comment 5 to Rule 7.2, Advertising, to clarify how the prohibition against paying others for “recommendation” applies to online lead generation services.

- Clarify the language of Rule 7.3, Solicitation, that the rule’s prohibitions apply to anyone, not just “prospective clients,” and amend Comment 1 of that rule to define solicitation as “a targeted communication initiated by the lawyer that is directed to a specific person and that offers to provide, or can reasonably be understood as offering to provide, legal services,” as opposed to communications with the general public.

On the subject of outsourcing, the following changes took place:

- New Comments 6 and 7 to Rule 1.1, Competence, discuss circumstances under which a lawyer may retain or contract with other lawyers outside the lawyer’s own firm in the provision of legal services to a client. The lawyer should ordinarily obtain informed consent from the client, must reasonably believe that the other lawyers’ services will contribute to the competent and ethical representation of the client, and should consult with the client and with each other about the scope of their respective services.

- Changes to Comment 1 of Rule 5.3, Nonlawyer Assistants, require reasonable efforts to ensure that the services of nonlawyers outside the firm are provided in a manner that is compatible with the lawyer’s professional obligations. New comments 3 and 4 deal at length with such obligations. Examples include the retention of an investigative or paraprofessional service, hiring a document management company to create and maintain a database for complex litigation, sending client documents to a third party for printing or scanning, and using an Internet-based service to store client information.

- A sentence is added to Comment 1 to Rule 5.5, Unauthorized Practice of Law, reminding lawyers that they must not assist anyone in the unauthorized practice of law.

Noting the need for lawyers to have mobility in changing jobs and relocating to new jurisdictions, the ABA approved changes to:

- Propose new model rules on practice pending admission and admission by motion (reciprocal admission).

- Amend Rule 1.6(b) to add a new Subparagraph 7, allowing lawyers to reveal information to detect and resolve conflicts of interest between lawyers in different firms arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client. New comments 13 and 14 to the rule discuss the disclosure of information for detection of conflicts at length.

The Model Rules are advisory, and the changes do not alter the enforceable standard of conduct for lawyers in other states unless and until they are adopted and incorporated into each state’s rules of professional conduct.