Last Chance to Comment on ABA Ethics 20/20 Draft Proposals

By Roy Simon

[Originally published in NYPRR November 2011]

In 2009, the ABA created the ABA Commission on Ethics 20/20, which has been comprehensively reviewing the ABA Model Rules of Professional Conduct (and other regulations affecting lawyers) in light of globalization and changes in information technology. Like the ABA Ethics 2000 Commission a decade ago, the Ethics 20/20 Commission is likely to have substantial influence on the future of lawyer regulation in the United States. And now that New York has adopted the numbering, the format, and much of the language of the ABA Model Rules of Professional Conduct, the work of the Ethics 20/20 Commission is far more relevant to New york lawyers than it would have been a few years ago.

Consequently, the immediate Past President of the New york State Bar Association (Steve Younger) urged the State Bar’s Committee on Standards of Attorney Conduct to get involved in the work of the Ethics 20/20 Commission early on, and the current State Bar President (Vince Doyle) has continued that interest. Many of the proposals are close to final, but there is still time to comment. The deadline for sending comments on the most recent proposals is Nov. 30, 2011.

Your comments and suggestions can have an impact. The Ethics 20/20 Commission studies them all and takes them seriously. When it issued a revised proposal to amend Rule 4.4(b) in September, for example, the Commission said:

The Commission heard concerns, including from the New York State Bar Association’s Committee on Standards of Attorney Conduct (COSAC), that the proposed new phrase “document or information” was ambiguous and might be overly broad. The Commission agreed and has re-phrased the proposal so that it uses a term that is commonly found in the discovery context — “document or electronically stored information.”

In this article, I lay out, in chart form, all of the proposed new and amended provisions in both the black letter Rules and the Comments of the ABA Model Rules of Professional Conduct. To read the Ethics 20/20 Commission’s thoughtful reports accompanying each proposal, go www.americanbar.org/ethics2020.

Background

During 2011, the Ethics 20/20 Commission issued a number of new and revised draft proposals for public comment. The topics, release dates, and Model Rule provisions involved in the various proposals are as follows:

TOPIC & RELEASE DATE	RULES & COMMENTS AFFECTED
Technology and Client Development Released June 29, 2011; revised	Amended Rule 1.18(a)-(b) Amended Cmts. [1]–[2] & [4]-[5] to Rule 1.18 New Comment [3] to Rule 1.18 Amended Comments [1], [2], [3]–[5] to Rule 7.2 Amended Rule 7.3(a)-(c) New Comment [1] to Rule 7.3 Amended Comments [1]-[5] to Rule 7.3
Model Rule 5.5 Released Sept. 7, 2011	Amended Comments [13]–[15] to Rule 5.5
Confidentiality, Lawyers Moving Firms, and Conflicts Checking Released Sept. 7, 2011	New Rule 1.6(b)(7) New Comment [14] to Rule 1.6
Choice of Law and Conflicts of Interest Released Sept. 7, 2011	New Comment [23] to Rule 1.7
Model Rule 5.5 (d)(3) Continuous and Systematic Presence Released Sept. 7, 2011	Amended Rule 5.3(d) introductory language New subparagraph (d)(3) to Rule 5.5 Amended Comment [4] to Rule 5.5 New Comment [19] to Rule 5.5
Outsourcing Released May 2, 2011; revised Sept. 19, 2011	New Comment [6] to Rule 1.1 Amended Comment [1] to Rule 1.1 Amended Comment [1] to Rule 5.3 New Comments [3]-[4] to Rule 5.3
Technology & Confidentiality Released May 2, 2011; revised Sept. 19, 20	New Comment [9] to Rule 1.0 New Rule 1.6(c) Amended Comment [16] to Rule 1.6 Amended Rule 4.4(b) Amended Comments [2]-[3] to Rule 4.4

In addition, on Oct. 19, 2011 the Ethics 20/20 Commission released a white paper on Alternative Litigation Finance, but the white paper did not recommend any specific amendments to the Rules or Comments. And a proposal on alternative business structures (such as nonlawyer ownership of law firm) was expected in late October or early November 2011.

As the table above indicates, the reports released so far by the Ethics 20/20 Commission’s have generally been by topic rather than by Rule. On one hand, that makes sense — it is helpful to see all of the different Rules and Comments that might need to be added or amended to address the new confidentiality issues created by advances in technology, for example. On the other hand, grouping the proposed amendments by topic makes it hard to keep track of which Rules and Comments are up for amendment.

I have therefore created my own table by arranging all of the proposed additions and amendments to the Rules and Comments in numerical order. Although I make very few editorial comments on the proposals, this chart took many hours to put together, so I hope you find it useful in keeping up with the important work of the ABA Commission on Ethics 20/20.

ROY SIMON’S CHART OF ETHICS 20/20 PROPOSALS
New or Amended Rule or Comment Subject (date)	Legislative Style Text of Proposed Rule or Comment
Rule 1.0, cmt. [9] (new)Technology and Confidentiality (May 2, 2011)	[9] … To implement, reinforce and remind all affected lawyers of the presence of the screening, it may be appropriate for the firm to undertake such procedures as a written undertaking by the screened lawyer to avoid any communication with other firm personnel and any contact with any firm files or other materials information, including information in electronic form, relating to the matter, written notice and instructions to all other firm personnel forbidding any communication with the screened lawyer relating to the matter, denial of access by the screened lawyer to firm files or other materials information, including information in electronic form, relating to the matter, written notice and instructions to all other firm personnel forbidding any communication with the screened lawyer relating to the matter, denial of access by the screened lawyer to firm files or other materials relating to the matter and periodic reminders of the screen to the screened lawyer and all other firm personnel.
Rule 1.1, cmt. [6] (new)Outsourcing Report (Sept. 19, 2011)	[6] Before a lawyer retains or contracts with other lawyers outside the lawyer’s own firm to provide or assist in the provision of legal services to a client, the lawyer should ordinarily obtain informed consent from the client and must reasonably believe that the other lawyers’ services will contribute to the competent and ethical representation of the client. See also Rules 1.2 (allocation of authority), 1.4 (communication with client), 1.5(e) (fee sharing), 1.6 (confidentiality), and 5.5(a) (unauthorized practice of law). The reasonableness of the decision to retain or contract with other lawyers outside the lawyer’s own firm will depend upon the circumstances, including the education, experience and reputation of the nonfirm lawyers; the nature of the services assigned to the nonfirm lawyers; and the legal protections, professional conduct rules, and ethical environments of the jurisdictions in which the services will be performed, particularly relating to confidential information. When using the services of nonfirm lawyers in providing legal services to a client, a lawyer also must reasonably believe that such services meet the standard of competence under this Rule.
Rule 1.1, cmt. [7] (new)Outsourcing Report (Sept. 19, 2011)	[7] Where the client has chosen or suggested lawyers from other law firms to assist in the provision of legal services to the client on a particular matter, the law firms who will be assisting the client on that matter should consult with each other and the client about the allocation or scope of representation and responsibility, including the allocation of responsibility for monitoring and supervision of any nonfirm nonlawyers who will be working on the client’s matter. See Rules 1.2 and 5.3. When making allocations of responsibility in a matter pending before a tribunal, lawyers and parties may have additional obligations that are a matter of law beyond the scope of these Rules.
Rule 1.4, cmt. [4] (amended)	[4] Client telephone calls should be promptly returned or acknowledged. Lawyers should promptly respond to or acknowledge client communications.
Rule 1.6(b)(7) (new)Choice of Law and Conflicts of Interest (Sept. 7, 2011)	(b) A lawyer may reveal or use confidential information to the extent the lawyer reasonably believes necessary: …(7) to determine if a conflict of interest would arise from the lawyer’s association with a firm, but only when there is a reasonable possibility of such an association and the revealed information would not adversely affect the lawyer’s client. Information revealed under this paragraph may not be used or revealed by the lawyers receiving the information for any purpose except the identification and resolution of potential conflicts of interest.
Rule 1.6(c) (new)Technology and Confidentiality (May 2, 2011)	(c) A lawyer shall make reasonable efforts to prevent the unintended disclosure of, or unauthorized access to, information relating to the representation of a client.
Rule 1.6, cmt. [14] (new)	[14] Paragraph (b)(7) recognizes that, before a lawyer becomes associated with a firm, it may be necessary for the lawyer to reveal limited information about the lawyer’s current and former clients to permit the lawyer and the firm to identify conflicts of interest that would arise from the lawyer’s association with the firm. A lawyer is permitted to reveal this limited information, typically no more than the client’s identity and the general nature of the work that the lawyer performed for that client, but only to the extent reasonably necessary to permit the lawyer and the firm to determine if a conflict of interest would arise from the lawyer’s association with the firm. In no event may disclosure prejudice a client or former client. In most cases, prejudice will not occur from the mere disclosure of a client’s or former client’s identity or a brief summary of the type of work that the lawyer performed for that client or former client. in certain cases, however, such a disclosure could adversely affect the client’s interests (e.g., the lawyer reveals that a particular corporate client is seeking advice on a corporate takeover that has not yet been publicly announced or that a person has consulted with a lawyer about the possibility of seeking a divorce before the person’s intentions are known to the person’s spouse). If disclosure could prejudice a client or former client, the lawyer must obtain the client’s consent before disclosing any information or delay the association with the firm until the disclosure of the information would no longer adversely affect the client’s interests. Moreover, information revealed under paragraph (b)(7) may not be used or revealed by the lawyers receiving the information for any purpose except the identification and resolution of potential conflicts of interest. This prohibition does not apply to other lawyers in the same firm who have obtained the information from an independent source.
Rule 1.6, cmt. 16 (amended)Technology and Confidentiality (May 2, 2011)	[16] Paragraph (c) requires that a lawyer must to act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons or entities who are participating in the representation of the client or who are subject to the lawyer’s supervision or monitoring. See Rules 1.1, 5.1 and 5.3. Factors to be considered in determining the reasonableness of the lawyer’s efforts include the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, and the cost of employing additional safeguards. Whether a lawyer may be required to take additional steps to safeguard a client’s information in order to comply with other law, such as state and federal laws that govern data privacy or that impose notification requirements upon the loss of, or unauthorized access to, electronic information, is beyond the scope of these Rules.
Rule 1.7, cmt. 23 (new)Choice of Law and Conflicts of Interest (Sept. 7, 2011)	[23] A matter may require a lawyer to perform work in multiple jurisdictions whose conflict rules differ. To ensure that a lawyer and client have the ability to reduce uncertainty and to predict which conflict rules will apply to a matter, the lawyer and client may agree that their relationship concerning the matter will be governed by the conflict rules of a specific United States or foreign jurisdiction, which may be other than the jurisdiction whose rules would apply under Rule 8.5(b) absent such agreement. Any such agreement, however, is subject to the following conditions: The client gives informed consent to the agreement, confirmed in writing; the lawyer advises the client in writing of the desirability of seeking independent counsel regarding the agreement; the client has a reasonable opportunity to consult with independent counsel regarding the agreement; the selected jurisdiction must be one in which the predominant effect of, or substantial work relating to, the matter is reasonably expected to occur; and the agreement may not result in the application of a conflict rule to which informed client consent is not permitted under the rules of the jurisdiction whose rules would otherwise govern the matter. See Rules 1.7(b) and 8.5(b). Client consent under this paragraph is more likely to be effective if the client is an experienced user of legal services.
Rule 1.10	[Ethics 20/20 Commission is still considering a proposed amendment to Rule 1.10(a) but has so far taken no position.]
Rule 1.18(a) and (b) (amended)Technology and Confidentiality (May 2, 2011)	(a) A person who discusses communicates with a lawyer about the possibility of forming a client-lawyer relationship and has a reasonable expectation that the lawyer is willing to consider forming a client-lawyer relationship with respect to a matter is a prospective client.(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with learned information from a prospective client shall not use or reveal that information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.
Rule 1.18, cmts. [1]-[2] (amended,) cmt. [3] (new), and cmts. [4]-[5] (amended)Technology and Confidentiality (May 2, 2011)	[1] Prospective clients, like clients, may disclose information to a lawyer, place documents or other property in the lawyer’s custody, or rely on the lawyer’s advice. A lawyer’s discussions communications with a prospective client usually are limited in time and depth and leave both the prospective client and the lawyer free (and sometimes to proceed no further.) Hence, prospective clients should receive some but not all of the protection afforded clients.[2] Not all persons who communicate information to a lawyer are entitled to protection under this Rule. A person who communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to consider the possibility of forming a client-lawyer relationship, is not a ‘‘prospective client’’ within the meaning of paragraph (a). Moreover, a person who communicates with a lawyer for the primary purpose of disqualifying the lawyer from handling a materially adverse representation on the same or a substantially related matter is not a “prospective client.”[3] When a person initiates an electronic communication with a lawyer, such as through email or a website, the reasonableness of the person’s expectations that the lawyer is willing to consider forming a client-lawyer relationship may depend on a number of factors, including whether the lawyer previously represented or declined to represent the person; whether the person, prior to communicating with the lawyer, encountered any warnings or cautionary statements that were intended to limit, condition, waive or disclaim the lawyer’s obligations; whether those warnings or cautionary statements were clear, reasonably understandable, and conspicuously placed; and whether the lawyer acted or communicated in a manner that was contrary to the warnings or cautionary statements. For example, if a lawyer’s website encourages a website visitor to submit a personal inquiry about a proposed representation and the website fails to include any cautionary language, the person submitting the information could become a prospective client. in contrast, if a website offers only information about the lawyer or the lawyer’s firm, including the lawyer’s contact information, this information alone is typically insufficient to create a reasonable expectation that the lawyer is willing to consider forming a client-lawyer relationship.[Comment [4] would be amended to change “the initial interview” to “initial communications” and Comment [5] would be amended to change the words “conversation” and “consultation” to “communications.”]
Rule 4.4 (amended)Technology and Confidentiality (May 2, 2011; revised Sept. 19, 2011)	Rule 4.4 Respect for Rights of Third Persons[May 2nd version – superseded] (b) A lawyer who receives information or material a document relating to the representation of the lawyer’s client and knows or reasonably should know that the information or material document was inadvertently sent shall promptly notify the sender.[Sept. 19th revised version] (b) A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent not intended to be disclosed to the lawyer shall promptly notify the sender.
Rule 4.4, cmts. [2] and [3] (amended)Technology and Confidentiality (revised Sept. 19, 2011 — only the Sept. 19th revised version of the Comments is shown)	[2] Paragraph (b) recognizes that lawyers sometimes receive a documents or electronically stored information that were was mistakenly sent or produced by opposing parties or their lawyers. If a lawyer knows or reasonably should know that such a document or electronically stored information was sent inadvertently not intended to be disclosed to the lawyer, then this Rule requires the lawyer to promptly notify the sender in order to permit that person to take protective measures. Whether the lawyer is required to take additional steps, such as returning the original document or electronically stored information, is a matter of law beyond the scope of these Rules, as is the question of whether the privileged status of a document or electronically stored information has been waived. Similarly, this Rule does not address the legal duties of a lawyer who receives a document or electronically stored information that the lawyer knows or reasonably should know may have been wrongfully inappropriately obtained by the sending person. For purposes of this Rule, “document or electronically stored information” includes paper documents, email, and other forms of electronically stored information, including electronic documents and the hidden data about the information contained in those documents (commonly referred to as “metadata”), that are email or other electronic modes of transmission subject to being read or put into readable form. Receipt of electronic information containing “metadata” does not, standing alone, create a duty under this Rule.[3] Some lawyers may choose to return a document or electronically stored information unread, for example, when the lawyer learns before receiving it the document that it was not intended by the sender to be received by the lawyer inadvertently sent to the wrong address. Where a lawyer is not required by applicable law to do so, the decision to voluntarily return such a document or electronically stored information is a matter of professional judgment ordinarily reserved to the lawyer. See Rules 1.2 and 1.4.
Rule 5.3, cmt. [2] (amended) and cmts. [3] and [4] (new)Outsourcing (Sept. 19, 2011)	[3] A lawyer may use nonlawyers outside the firm to assist the lawyer in rendering legal services to the client. Examples include the retention of an investigative or paraprofessional service, hiring a document management company to create and maintain a database for complex litigation, sending client documents to a third party for printing or scanning, and using an internet-based service to store client information. When using such services outside the firm, a lawyer must make reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer’s professional obligations. The extent of this obligation will depend upon the circumstances, including the education, experience and reputation of the nonlawyer; the nature of the services involved; the terms of any arrangements concerning the protection of client information; and the legal and ethical environments of the jurisdictions in which the services will be performed, particularly with regard to confidentiality. See also Rules 1.1 (competence), 1.2 (allocation of authority), 1.4 (communication with client), 1.6 (confidentiality), 5.4(a) (professional independence of the lawyer), and 5.5(a) (unauthorized practice of law). When retaining directing a nonlawyer outside the firm, a lawyer should communicate directions appropriate under the circumstances to give reasonable assurance that the nonlawyer’s conduct is compatible with the professional obligations of the lawyer.[4] Where the client has chosen or suggested a particular nonlawyer service provider outside the firm, the lawyer or law firm ordinarily should consult with the client concerning the allocation of responsibility for monitoring as between the client and the lawyer or law firm. See Rule 1.2. When making such an allocation in a matter pending before a tribunal, lawyers and parties may have additional obligations that are a matter of law beyond the scope of these Rules.
Rule 5.4	[Proposal due out in late October or early November 2011.]

Professor Roy Simon is the author of Simon’s New York Rules of Professional Conduct Annotated. The brand new 2015 edition analyzes more than 100 new cases, ethics opinions, and other developments critical to New York practice. It’s the legal ethics bible for all New York-area lawyers. To purchase, click here.

In addition, Professor Simon advises lawyers and law firms on questions of professional conduct and serves as an expert witness in cases raising issues of lawyer conduct. You may reach Professor Simon at 516-463-5289 or Roy.Simon@hofstra.edu.

DISCLAIMER: This article provides general coverage of its subject area and is presented to the reader for informational purposes only with the understanding that the laws governing legal ethics and professional responsibility are always changing. The information in this article is not a substitute for legal advice and may not be suitable in a particular situation. Consult your attorney for legal advice. New York Legal Ethics Reporter provides this article with the understanding that neither New York Legal Ethics Reporter LLC, nor Frankfurt Kurnit Klein & Selz, nor Hofstra University, nor their representatives, nor any of the authors are engaged herein in rendering legal advice. New York Legal Ethics Reporter LLC, Frankfurt Kurnit Klein & Selz, Hofstra University, their representatives, and the authors shall not be liable for any damages resulting from any error, inaccuracy, or omission.

Professional Conduct Roy Simon