I confess that since I moved in-house, I have had little to do with the American Bar Association (ABA). My perception has been that the ABA’s focus on in-house counsel has been wanting and perhaps abdicated to the Association of Corporate Counsel. There is, however, a powerful group within the ABA that influences your day-to-day practice, and it wants ands deserves your attention.
The group is the Commission on Ethics 20/20. It was created to perform a thorough review of the ABA Model Rules of Professional Conduct in the context of advances in technology and global legal practice developments. The commission’s challenge is to study issues, obtain critical feedback from attorneys and, if necessary, propose changes to the Model Rules. The commission’s work is guided by three principals: protecting the public, preserving the legal professional’s core values, and maintaining a strong independent and self-regulated legal profession. The commission has published white papers on topics critical to in-house practice including: alternative business structures, multijurisdictional practice, choice of law in cross-border practice, client confidentiality and lawyers’ use of technology, admission by motion and alternative litigation financing.
In-house counsel surely are stakeholders in the commission’s work, yet many of us haven’t heard of it. Now is the perfect time to direct some much-deserved attention to it. On Sept. 8, the commission issued a number of draft proposals including lawyers’ use of technology to protect client information and registration of foreign lawyers to practice in-house. Let’s take a brief look at these proposals, as they are important to in-house practice.
First, the commission has proposed revisions to Model Rule 1.6 (“Confidentiality of Information”) requiring a lawyer to “make reasonable effort to prevent inadvertent disclosure of, or unauthorized access to, information relating to representation of a client.” A companion comment directs that the “reasonable efforts” required depend on several factors including the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of the additional safeguards and the difficulty and cumbersomeness of applying the safeguards. The balancing of these considerations is familiar to in-house lawyers who are required to manage and protect company information on a daily basis. Still, this proposal elevates this exercise to a professional mandate replete with a state bar’s opportunity to assess (read: second guess) the reasonableness of the safeguards that failed to prevent the inadvertent disclosure. In the aftermath of an inadvertent disclosure of client information, would any failed safeguard be deemed reasonable?
Another proposal specifically targeting at in-house counsel seeks to permit foreign-admitted lawyers to register and then practice in-house within the U.S. This proposal is to amend the ABA Model Rule for Registration of In-House Counsel that currently limits registration to in-house lawyers admitted to practice in another state. The implications of this change (already implemented in a few states) for global legal departments and mobility within them are enormous.
The commission’s work directly relates to in-house practice, and our voice should guide it. The commission invites our participation, stating: “Our work is at a critical stage, so we still need to hear from you about what we have produced. We want feedback and input from as wide a swath of the public and profession as possible so that we can present full vetted recommendations to the [ABA] House of Delegates next August.” To submit comments on these proposals, visit the Commission’s website by November 30.