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
With respect to technology, the ABA House of Delegates approved several amendments to the black letter and commentary of the Model Rules forwarded by the ABA Commission on Ethics 20/20 during its annual meeting held August 2-7, 2012. Perhaps the most important rule change from August 2012 involves competence. The commentary following Model Rule 1.1 was revised to state that “lawyers should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology."
The commission explained that the clause relates to “how lawyers conduct investigations, engage in legal research, advise their clients, and conduct discovery.” Competence in the practice of law is inextricably tied to nearly every other ethical obligation on the books—the implications of bridging technological awareness to this overarching duty are substantial.
In a descriptive overview of the changes, the commission stated that “lawyers need to know how to make and respond to electronic discovery requests”—making and responding to e-discovery competently is a deceptively involved process. Competence surely requires lawyers to understand that electronically stored information (ESI) is discoverable—but just how far does it go? Can a lawyer be competent while ignoring format of production issues, not cooperating with opposition, exclusively using keyword search, failing to consider predictive coding or technology assisted document review, letting client-lawyer preservation communication fall through or skimping on quality control? While the iron hand in the velvet glove for these ediscovery issues remains with the courts, it will be interesting to see how high the commission sets the bar on tech-competence.
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.
- The reference to “e-mail” in paragraph (n) of Model Rule 1.0 (Terminology), which defines “writing,” was changed to “electronic communication.” This change accommodates for other forms of electronic communication (e.g., social media) that are becoming increasingly prevalent in the practice of law.
- Similarly, in comment  to Model Rule 1.4 (Communication), the obligation to promptly return “client telephone calls” was replaced with “client communications.”
- The House of Delegates approved the addition of new paragraph (c) to Model Rule 1.6 (Confidentiality of Information). Paragraph (c) states that “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.” The commission stressed that this new rule does not “impose upon lawyers a duty to achieve the unattainable.” Instead, the duty is couched in terms of reasonableness; comments  and  highlight the factor-based approach to determining the adequacy of a lawyer’s efforts in safeguarding client information.
- Model Rule 4.4 (Respect for Rights of Third Persons) now directly addresses the issues a lawyer faces when receiving inadvertently disclosed ESI. Comment  provides additional guidance regarding when a lawyer must notify a sending party of a disclosure. Further, the commentary articulates that inadvertently disclosed ESI includes metadata.
The amendments also address how new marketing services “such as law firm websites, blogs,” and “social and professional networking sites” are affecting the practice of law. The House approved amendments to Model Rule 1.18 (Duties to a Prospective Client) and its comments to bring to light the potential repercussions of client-lawyer electronic communication. The House also approved amendments to Model Rules 7.1 (Communications Concerning a Lawyer’s Service), 7.2 (Advertising) and 7.3 (Solicitation of Clients). The final amendments address the thorny issues of lawyer mobility and outsourcing in an age of rampant globalization (via amendments to Model Rule 5.5 (Unauthorized Practice of Law; Multijurisdictional Practice)). As business and technology becomes increasingly intertwined, it is critical that corporate counsel fully understand what it takes to practice law in the 21st century.