ABA
Commission on
Ethics 20/20
www.americanbar.org/Ethics2020
ABA Commission on Ethics 20/20:
Studying a “New Normal”
Created in 2009 to study how rules and policies
concerning lawyer conduct need to be revised in
light of:
 Changes in Technology
 Globalization
Commissioners
Jamie S. Gorelick (Co-Chair), WilmerHale (Washington, D.C.)
Michael Traynor (Co-Chair), President Emeritus, ALI (California)
Stephen Gillers, New York University Law School
Jeffrey B. Golden, London School of Economics
William C. Hubbard, Nelson Mullins Riley & Scarborough (S. Carolina)
George W. Jones, Sidley Austin (Washington, D.C.)
Justice Elizabeth B. Lacy, Virginia Supreme Court
Carolyn B. Lamm, White & Case (Washington, D.C.)
Judith A. Miller, Fmr. Chair, Section of Litigation (Washington, D.C.)
Judge Kathryn A. Oberly, District of Columbia Court of Appeals
Roberta Cooper Ramo, Modrall & Sperling (New Mexico)
Herman J. Russomanno, Russomanno & Borello (Florida)
Theodore Schneyer, University of Arizona Law School
Carole Silver, Indiana University Maurer School of Law
Frederic S. Ury, Ury & Moskow (Connecticut)
Chief Justice Gerald W. VandeWalle, North Dakota Supreme Court
Commission Outreach to Date
• Early release of draft proposals and revised drafts
• Hundreds of comments received on the
Commission’s initial proposals and papers
• Public hearings held throughout the country
• 75+ presentations to ABA entities as well as state,
local, specialty, and international bar associations
Ethics 20/20 Commission Working Groups
 Technology
 Outsourcing
 Conflicts of Interest, Uniformity & Choice of Law
 Inbound Foreign Lawyers
 Alternative Litigation Financing
 Alternative Law Practice Structures
 Rankings
Timeline for Commission Proposals
August 2012
February 2013
•Technology
(confidentiality)
•Conflicts-related
choice of law issues
•Technology (marketing)
•Alternative Law
Practice Structures
(including choice of law
issues)
•Outsourcing
•Mobility Issues
(admission in new
jurisdictions, conflicts
screening for laterals)
•Inbound Foreign
Lawyers
Technology Working Group
Two Sub-Committees
 Confidentiality Issues
 Client Development Issues
Technology Working Group (Confidentiality)
The Past: Protecting Client Information
Technology Working Group (Confidentiality)
The Reality: Protecting
Client Information
Hypo on Technology and Confidentiality
Lawyer keeps confidential client
information on a laptop, smartphone, flash
drive, and in the “cloud.” What steps
must Lawyer take to satisfy ethical
obligations to protect the confidential
information?
Under present rules? Under 20/20
proposal?
Proposal to Amend Model Rule 1.6
Duty of Confidentiality:
(c) A lawyer shall make reasonable
efforts to prevent the inadvertent or
unauthorized disclosure of, or
unauthorized access to, information
relating to the representation of a client.
Factors for Determining the Reasonableness
of the Lawyer’s Efforts
•
Sensitivity of information
•
Likelihood of disclosure without safeguards
• Cost of additional safeguards
• Difficulty of implementing safeguards
• Extent to which the safeguards adversely
affect lawyer’s ability to represent clients
Mere disclosure, by itself, does not
trigger discipline.
Other Key Commission Proposals in this Area
•Creation of a user-friendly ABA website
with answers to common questions
•Amendment to Comment [6] to Model
Rule 1.1 (Competence). Competence
requires a lawyer to stay abreast of the
“benefits and risks associated with
technology”
Other Key Commission Proposals in this Area
• Amendment to Comment [4] to Model Rule
1.4 (Communication), telling lawyers that they
need to respond promptly to “client
communications” and not just “telephone
calls.”
• Amendments to Model Rule 4.4(b) (receipt
of misdirected documents) to clarify that a
lawyer’s duty to notify the sender of a mistake
arises for both documents as well as
“electronically stored information” (including
electronic metadata).
Technology (Client Development)
The Past
Technology (Client Development)
Websites
Pop-up
Ads
Blogs
The Present
Hypo on Technology and Client Development
Lawyer gives a talk to a large group of non-lawyers,
including corporate executives, on the subject of corporate
governance.
Lawyer’s firm has a website that provides information on
Lawyer’s practice and some of the innovative governance
practices she has developed.
A member of the audience writes Lawyer an email
containing information about some dissension on Company
D’s board and asking if Lawyer would be willing to
represent the dissident directors.
Lawyer knows that a client of the firm would very much like
to know about the dissension on D’s board. May Lawyer
provide the information she has received?
Amendments to Model Rule 1.18
(Prospective Clients)
(a) A person who discusses communicates
with a lawyer about the possibility of forming a
client-lawyer relationship and has a
reasonable expectation that the lawyer is
willing to consider forming a client-lawyer
relationship with respect to a matter is a
prospective client.
Prospective Clients: Factors to Consider
Whether the lawyer encouraged or solicited inquiries
about a proposed representation;
Whether the lawyer previously represented or declined
to represent the person;
Whether the person encountered any warnings or
cautionary statements that were intended to limit,
condition, waive or disclaim the lawyer’s obligations;
Whether those warnings or cautionary statements were
clear and reasonably understandable; and
Whether the lawyer acted or communicated in a
manner that was contrary to the warnings or cautionary
statements.
Client Development Hypos
Lawyer uses pay-per-click services to
market her practice. What are the
ethical issues?
Lawyer uses a Facebook promotional
campaign to market her practice.
What are the ethical issues?
Amendments to Comment [5] to
Model Rule 7.2 (Advertisements)
Existing Rule: A lawyer must not give something
of value in exchange for a “recommendation.”
What’s a recommendation? The Commission’s
proposed definition:
“A communication contains a recommendation if
it endorses or vouches for a lawyer’s credentials,
abilities, competence, character, or other
professional qualities.”
Paying for Lead Generation
Permissible as long as:
• Lead generator does not “recommend” the
lawyer;
• Payment is consistent with Rules 1.5(e)
(division of fees) and 5.4 (professional
independence of the lawyer); and
• Lead generator’s communications to
potential clients are consistent with Rule 7.1
(false/misleading communications).
Amendments to Model Rule 7.3
(Solicitations)
SOLICITATION: A targeted communication
initiated by a lawyer to a specific person that
offers to provide, or can reasonably be
understood as offering to provide, legal
services.
NOT A SOLICITATION: A communication
directed to the general public or in response
to a request for information.
Outsourcing
Outsourcing: Abroad
Question
What ethical obligations do
lawyers have when using
lawyers and nonlawyers
outside the firm?
Outsourcing
 Amendments
to
Model
Rule
1.1
(Competence) that identify the relevant
factors to consider when outsourcing work
to lawyers outside the firm
 Amendments to Model Rule 5.3 that
identify the relevant factors to consider
when outsourcing work to nonlawyers
outside the firm
Uniformity Working Group (Lawyer Mobility)
Lawyer Mobility in an Increasingly Borderless
World
Hypo on Mobility and Confidentiality
A young lawyer seeks to move to a
new firm. What does the new firm
want to know about the young
lawyer’s current and former clients?
Why? When does the new firm need
to know it? What is the lawyer
ethically permitted to disclose under
existing Rules?
Ethics 20/20’s Proposed New Rule 1.6(b)(7)
(b) A lawyer may reveal information relating to the
representation of a client to the extent the lawyer
reasonably believes necessary:
...
(7) to detect and resolve potential conflicts of interest,
but only when the revealed information could not
adversely affect the client. Information revealed under
this paragraph shall not be used or revealed by the
recipient for any purpose except the detection and
resolution of potential conflicts of interest.
See Proposed New Comment [13] for More Detail
Other Mobility Issues
 Amendments to the Model Rule on Admission by Motion
that would reduce the time in practice requirement from 5
years to 3 years and a resolution urging jurisdictions that
have not adopted this Model Rule to do so without additional
restrictions, such as reciprocity requirements
 A new Model Court Rule on Practice Pending Admission
that would enable a lawyer licensed in one jurisdiction to
establish a systematic and continuous presence in a new
jurisdiction while diligently pursuing admission in the new
jurisdiction through one of the procedures that the jurisdiction
authorizes (e.g., admission by motion)
Timeline for Commission Proposals
August 2012
February 2013
•Technology
(confidentiality)
•Conflicts-related
choice of law issues
•Technology (marketing)
•Alternative Law
Practice Structures
(including choice of law
issues)
•Outsourcing
•Mobility Issues
(admission in new
jurisdictions, conflicts
screening for laterals)
•Inbound Foreign
Lawyers
Conflicts-Related Choice of Law Problems
Client A, a U.K. company, has retained Partner P,
a London-based and U.K.-licensed lawyer of a
Global Law Firm headquartered in the U.S. to
negotiate an acquisition of assets located in the
U.K. from X. Client B, a U.S. company and
longtime, significant client of the firm, would like
to retain New York Partner Q to negotiate an
acquisition of assets located in the U.S. from a
wholly owned subsidiary of A. May Partner Q
take on the retention without obtaining consent of
A? Would the result be different if A were a U.S.
company and B a U.K. company?
Solutions to Conflicts-Related Choice of Law
Problems?
• Existing Model Rule 8.5
• Ethics 20/20’s Proposal to Allow
Choice of Rule Agreements
• Other Possibilities
Alternative Law Practice Structures:
The Commission’s Conclusions
• No publicly traded law firms
• No outside passive equity
investment in law firms
• No multidisciplinary
practice
Discussion Draft Concerning
Model Rule 5.4
The Commission has asked for feedback on a
form of nonlawyer ownership that is similar to
(but more restrictive than) a form of nonlawyer
ownership that has existed in the District of
Columbia for more than 20 years.
Discussion Draft on
Nonlawyer Fee Sharing
Fee sharing with nonlawyers would be permitted, but only if:
• Such law firms are restricted to providing legal services;
• Nonlawyer owners provide services that support the delivery
of legal services by the lawyers (i.e., no multidisciplinary
practice);
• Nonlawyer ownership & voting interests are restricted by a
cap sufficient to ensure that lawyers retain control of the firm;
• Nonlawyer owners agree in writing to act in a manner
consistent with the Rules of Professional Conduct for lawyers;
and
• Lawyer owners are responsible for ensuring that the
nonlawyer owners are of good character and for supervising
the nonlawyers with respect to their compliance with the Rules
of Professional Conduct.
Nonlawyer Ownership Choice of Law Problems
Global Law Firm is headquartered in London, but
has an office in a Model Rules state. The London
office of the Firm would like to associate with a
small group of accountants who would assist the
law firm in its providing of legal advice and
maintain an accounting practice for a limited
number of clients. The leader of the group would
like to be called a partner and would be paid an
amount equal to that paid Level 5 partners in the
firm. The other members of the group would be
paid a salary and a discretionary bonus.
Current Answer
•ABA Formal Opinion 91-360 says
that it is permissible if the London
office remains financially and
managerially separate from the
office in the Model Rules state.
Choice of Law and Nonlawyer Ownership
A distinct issue from whether nonlawyer
ownership should be allowed. Possible
proposals would:
• Clarify that a lawyer can divide a legal fee with a
different firm that has nonlawyer partners and
owners.
• Clarify that a lawyer who is practicing in the
office of a law firm where nonlawyer fee sharing
is impermissible can share fees with nonlawyers
in the same firm who are located in another
office where such fee sharing is permissible, but
only when the nonlawyers are restricted to
assisting in the provision of legal services.
Inbound Foreign Lawyers
Foreign Lawyer Fly-In/Fly-Out (FIFO)
Question
How should the profession
regulate the practice of
foreign lawyers who need
to visit the United States to
assist their clients?
Commission Proposals Under Consideration
• Amendments to several Model
Rules that will more clearly
authorize, but place appropriate
limitations on, the practice of
foreign lawyers in the United
States
ABA
Commission on
Ethics 20/20
www.americanbar.org/Ethics2020