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ABA Amends Model Rules of Professional Conduct to Address Changes Brought by Technology and Globalization
May 3, 2013
It is undeniable that technology and globalization are changing the way lawyers practice law. Technology has not just made people, places, and things much more accessible to us – it has impacted the way we store information and documents, the way we communicate with and advise clients, how we conduct investigations, and how we participate in discovery. Likewise, globalization has brought with it an increasing number of legal issues that cross jurisdictional lines, and, as a result, more lawyers need to cross those lines in order to solve them. In addition, economic forces have resulted in both newer and more experienced lawyers relocating or seeking employment outside the jurisdiction in which they were originally licensed.
The American Bar Association (ABA) is cognizant of these changes. In August, 2012 and February, 2013 – after a three-year study of how technology and globalization are transforming the practice of law – the ABA amended the Model Rules of Professional Conduct (Model Rules) to address the regulation of lawyers in light of these twenty-first century realities. This article contains a summary of the most substantive changes adopted.[1]
Technology and Lawyer Competence
The ABA added language to Comment 6 of Rule 1.1: Competence to make it clear that a lawyer's duty to stay abreast of changes in the law and practice includes understanding the benefits and risks of relevant technology.See Model Rules of Prof'l Conduct 1.1 cmt 6.
Technology and Confidentiality
In response to new ways to store and disseminate information and documents, the ABA added language to Rule 1.6: Confidentiality of Information which states that a lawyer "shall make reasonable efforts to prevent the inadvertent disclosure of, or unauthorized access to, information relating to the representation of a client." Model Rules of Prof'l Conduct 1.6. New language added to Comment 16 identifies various factors that lawyers need to take into account when determining whether their efforts are reasonable, including the sensitivity of the information, the cost, and other factors.See Model Rules of Prof'l Conduct 1.6 cmt 16.
Globalization and Lawyer Mobility
The ABA adopted a new Model Rule to address the increasing need for lawyers to practice outside their home jurisdictions, sometimes on very short notice, in the face of time consuming admissions processes. Under the Model Rule for Practice Pending Admission, lawyers may practice in the new jurisdiction if:
- They have an active license in another jurisdiction and they have been engaged in the active practice of law for three of the last five years;
- They are not disbarred, suspended or facing discipline;
- They did not fail the bar exam in the new jurisdiction;
- There were not previously denied admission in the new jurisdiction; and
- They associate with a lawyer admitted to practice in the new jurisdiction.
The new rule also outlines the procedures the lawyers must follow, including submitting an admissions application within 45 days. See Model Rule for Practice Pending Admission.
Globalization and Confidentiality
A lawyer must identify possible conflicts of interest when exploring the possibility of joining a different firm or when firms consider a merger. Until the new amendments, the Model Rules did not provide sufficient guidance regarding how to identify conflicts in a manner consistent with the lawyer's duty of confidentiality. Accordingly, the ABA amended Rule 1.6: Confidentiality to provide that a lawyer may disclose discrete categories of information to the other firm in order to detect conflicts before the lawyer is hired or the two firms merge. See Model Rules of Prof'l Conduct 1.6. New Comments 13 and 14 state that any such disclosure should include "no more than the identity of the persons and entities involved in a matter, a brief summary of the general issues involved, and information about whether the matter has terminated."Model Rules of Prof'l Conduct 1.6 cmts.13 and 14. The amended Rule goes on to state that even these limited disclosures should not be made if they would "compromise the attorney-client privilege or otherwise prejudice the client." See Model Rules of Prof'l Conduct 1.6.
Globalization and Pro Hac Vice Admission
There are increasing instances in which litigation in U.S. courts involves issues related to international or foreign law, and a rise in situations in which foreign entities or individuals find themselves in U.S. courts. The pre-amendment version of Model Rule on Pro HacVice Admission did not provide judges with any guidance regarding the authority of foreign lawyers to appear pro hac vice. Accordingly, the ABA amended the Rule to address the factors a judge should consider in determining whether to grant a foreign lawyer's application, including the legal training and experience of the foreign lawyer, the extent to which the foreign lawyer's relationship and familiarity with the client or the matter will facilitate the fair and efficient resolution of the litigation, and other factors. See Model Rule on Pro Hac Vice Admission. The amended Rule makes it clear that the foreign lawyer can only appear as co-counsel or in a consultant or advisory role, and that the in-state lawyer is responsible to the client and the court: (i) for the conduct of the proceeding, (ii) for independently advising the client on the substantive law and procedural issues, and (iii) for advising the client whether the in-state lawyer's judgment differs from that of the foreign lawyer. Model Rule on Pro Hac Vice Admission.
Globalization, Unauthorized Practice of Law, and In-House Counsel
Rule 5.5 Unauthorized Practice of Law; Multijurisdictional Practice of Law generally prohibits lawyers who are not licensed in a particular jurisdiction from establishing a systematic and continuous presence in that jurisdiction for the purpose of practicing law. Model Rule of Prof'l Conduct 5.5. Previously, an exception permitted a U.S.-licensed attorney to serve as in-house counsel in a jurisdiction where he or she was not admitted to practice if certain conditions were met, but that exception did not apply to foreign-licensed lawyers. Faced with an increasing number of foreign companies with substantial operations in the U.S. and U.S. companies with substantial operations abroad, the ABA extended the Rule. Now, a foreign lawyer may serve as in-house counsel in the U.S. if certain conditions are met, with the added requirement that the foreign lawyer may not advise on U.S. law except in consultation with a U.S.-licensed lawyer. See Model Rule of Prof'l Conduct 5.5.
Conclusion
These changes to the Model Rules of Professional Conduct, while not conclusory, should provide additional guidance and assistance to lawyers dealing with the changes brought by technology and globalization. Because these issues will continue to expand, it is likely that additional changes or clarifications to the Model Rules will become necessary. As always, it is important to consult the rules of the specific jurisdiction in which you are practicing, or seeking to practice, for any changes specific to the jurisdiction.
[1] This article does not address every amendment to the Model Rules, only those considered by the authors to be the most substantive and relevant to defense practitioners. For a complete list of the modifications, see ABA Commission on Ethics 20/20: Introduction and Overview (May 7, 2012) and ABA Commission on Ethics 20/20: Introduction and Overview (February, 2013)
