In the mid-1990s, the legal community began to consider how the Internet would impact the ethical rules of the legal profession. Spurred by commentary on budding technological issues, the Model Rules of Professional Conduct (Model Rules) were amended in 2002 to address issues presented by “email” and “real-time electronic conduct.” But, in 2012, the American Bar Association (ABA) returned to the drawing board with next-generation issues like globalization, cloud computing and social media on the top of the list. The result: changes to several core ethics rules that will shape how corporate lawyers address the digital issues of tomorrow.
The 2012 Amendments
In a similar vein, the commission noted that conducting investigations, engaging in legal research, advising clients, and conducting discovery also requires “lawyers to have a firm grasp on how [ESI] is created, stored, and retrieved.” More and more, it seems like wherever communication flows, relevant ESI follows. Today contracts no longer live in desk drawers—they reside on hard drives, shared drives and the cloud. Communications about terminated employees have likewise migrated from voicemail inboxes to instant messages, text messages, social media posts and e-mail. This amendment is a clear affirmation that there is no ‘opting-out’ of e-discovery.
Outside the realm of competency, several other changes from August 2012 affect how lawyers will maintain confidentiality in the 21st century.