by Keith A. Call
On August 6, 2012, the ABA House of Delegates – the governing body over the Model Rules of Professional Conduct – adopted some important amendments that will impact your practice. Of course, Utah lawyers are governed by the Utah Rules of Professional Conduct, not the Model Rules. But the Model Rules form an important body of common law and are a harbinger of likely future changes to the Utah Rules.
The new amendments reflect an effort to address the increased use of technology in law practice and in daily life. They reflect a critical need for all lawyers, young and old, to be familiar with the impact of technology on the law.
Here is a quick summary of the most important changes:
Everyone: Pay Attention
The ABA amended the comments to Rule 1.1 (Competence) to state that a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology. ABA Model Rules of Prof’l Conduct, R. 1.1, cmt. 8 (2012). The ABA also added a provision to Rule 1.6 (Confidentiality) stating that a lawyer “shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure” of information relating to a client. Id. R. 1.6(c). And comments to Rule 5.3 (Non-Lawyer Assistants) impose expanded responsibilities on lawyers to ensure that outside vendors and others (including document management companies, data storage companies, etc.) comply with the lawyer’s professional obligations. Id. R. 5.3, cmt. 3.
Wow! These are significant changes. The scope of these expanded duties is yet to be fully defined. But it is clear that technophobic lawyers can no longer ignore computers and other emerging technologies. They at least need to associate with someone who is competent in these areas. All of us should seek more competence in such things as information retention and destruction policies, information preservation issues, and e-discovery.
On a related issue, Rule 4.4 (Respect for Rights of Third Persons) continues to require a lawyer to notify the sender upon receipt of a document that the lawyer knows or should know was inadvertently sent. The ABA amended this rule to specifically include electronically stored information and amended the comment to specifically address ESI, including metadata. Id. R. 4.4(b) and cmt. 2.
The old Model Rule 7.2 (and Utah’s current Rule 7.2) generally prohibits a lawyer from giving anything of value for recommending the lawyer’s services, except for payment of such things as “reasonable costs of advertisements” or the “usual charges” of certain lawyer referral services. See ABA Model Rules of Prof’l Conduct R. 7.2(b) (2009); Utah Rules of Prof’l Conduct, R. 7.2(b) (2012). Application of the old rule was pretty clear in the case of television or yellow pages advertisements. But it is extremely murky in the world of internet referral services such as Legal Match, Total Attorneys, Groupon, Martindale-Hubble.com, and others. One ambiguity is whether such services are “recommending” the lawyer’s services in exchange for a referral fee.
The ABA addresses this issue in amendments to a Rule 7.2 comment by defining the word “recommendation” as “communication…[that] endorses or vouches for a lawyer’s credentials, abilities, competence, character, or other professional qualities.” ABA Model Rules of Prof’l Conduct, R. 7.2, cmt. 5 (2012). A lawyer may pay others for internet-based client leads as long as the lead generator does not “recommend” the lawyer, does not make false or misleading communications about the lawyer, and meets certain other conditions. In short, you cannot pay a lead generator to “recommend” you and you cannot pay a lead generator whose advertisements violate other ethics rules. Id.
Direct Client Solicitation
The ABA has amended Rule 7.3 (Direct Contact with Prospective Clients) in an effort to bring more clarity to the definition of “solicitation” in the internet world. For example, are you “soliciting” a client when you participate in a chat group on LinkedIn, or when your pop-up ad appears in response to a particular internet search?
A new comment defines a “solicitation” as a “targeted communication initiated by a lawyer that is directed to a specific person and that offers to provide, or can reasonably be understood to provide, legal services.” Id. R. 7.3, cmt. 1. A lawyer’s communication will not typically be considered a “solicitation” if it is directed to the general public, if it is in response to a request for information, or if it is automatically generated in response to internet searches. Id.
Formation of Attorney-Client Relationship
Amendments to Rule 1.18 (Duties to Prospective Client) and its comments seek to add clarity to the formation of an attorney-client relationship through internet and other similar communications, and to clarify the lawyer’s duties to prospective clients. These new rules expand a lawyer’s duties to prospective clients, even though they are not clients. For example, if your website (or other advertisement) requests or invites the submission of information about potential representation without clear and understandable warnings, you may be restrained by obligations of confidentiality from the moment a prospective client sends you information about their case. The amendments also clarify that a person can be a prospective client through internet or email consultations, even though there have been no oral discussions. See id. R. 1.18 and cmt. 2.
Multi-jurisdictional Practice and Lawyer Mobility
The ABA adopted a new stand-alone “Model Rule on Practice Pending Admission.” In general, the rule provides that a lawyer who has been practicing in another state for three out of the last five years may practice law for up to 365 days in a new state where the lawyer is not yet licensed. The lawyer must associate with counsel licensed in the new jurisdiction. ABA Model Rule on Practice Pending Admission (2012). The ABA also amended Rule 5.5 (Unauthorized Practice of Law) to authorize practice in a new jurisdiction under the new Rule on Practice Pending Admission. See ABA Model Rules of Prof’l Conduct, R. 5.5(d)(2) and cmt. 18 (2012).
These new rules are intended to address situations where a lawyer must relocate to a new state before he can become licensed in the new state. These new rules include several conditions, so read them carefully if they apply to you.
A lawyer’s duties to understand technology and operate ethically in its realms are clearly expanding. This is certainly a boon to the CLE industry. It will hopefully improve the legal profession as well.