The American Bar Association Standing Committee on Ethics and Professional Responsibility has released a formal opinion cataloguing the relevant model rules and technological considerations that lawyers should be aware of when practising virtually. The opinion (Formal Opinion 498) identifies some of the minimum requirements for virtual practice under the ABA Model Rules of Professional Conduct as well as suggesting several best practices to meet ethical obligations in a virtual setting.
The opinion states that “When practising virtually, lawyers must particularly consider ethical duties regarding competence, diligence, and communication, especially when using technology,” the opinion said. “In compliance with the duty of confidentiality, lawyers must make reasonable efforts to prevent inadvertent or unauthorized disclosures of information relating to the representation and take reasonable precautions when transmitting such information.” Noting that the “duty of supervision” requires lawyers who supervise others to “make reasonable efforts to ensure” that their direct reports comply with the model rules, particularly if these colleagues are still working virtually.
The best practices cover hardware devices and software systems; accessing client files and data; using virtual meeting platforms and videoconferencing; and virtual document and data exchange platforms, among others.
Read the full opinion here.
On the 16th February, the American Bar Association Commission on Racial and Ethnic Diversity in the Profession today released its 2020 ABA Model Diversity Survey Report, the first report focused on diversity, equity and inclusion within law firm practices in the USA.
The Model Diversity Survey (MDS), was developed in 2016, and is designed to give clients the tools to review and assess diversity, equity and inclusion of the legal service providers and to make decisions regarding hiring and retention. It assesses firm policies, practices and outcomes regarding hiring, attrition, promotion, leadership, work schedules and compensation. The MDS Report includes 2017-19 data from more than 370 law firms.
Some of the findings of the survey were that:
- Firm leadership was overwhelmingly made up of white men relative to white women and racial, LGBTQ+ and disabled minorities of any gender identity.
- Hires and promotions/attrition suggest that representation of minority groups is growing at the bottom levels of associates but is declining at the higher levels of non-equity and equity partners.
- Attrition rates were substantially larger for nonwhite attorneys (e.g., nearly three times larger for African American/Black and Hispanic/Latino attorneys) relative to white attorneys.
- The percentage of white associates promoted to equity partner was slightly higher than the percentage of white associates promoted to non-equity partner. This pattern was reversed for female associates, and the associates of all other racial minority groups which displayed larger percentages promoted to non-equity partner than to equity partner.
- Minority males and females consistently ranged between 0% to 2% of the top 10% highest-paid attorneys in law firms.
The full report can be viewed here.
On the 16th December 2020 the American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility released a formal opinion to help lawyers to better understand the application of model rules to lawyers practising remotely, this is particularly for those working from jurisdictions in which they are not licensed.
Formal Opinion 495 provides guidance when a lawyer may practice the law for which they are licensed while physically in a different jurisdiction. The guidance has stated that if a lawyer is physically present in a jurisdiction in which they are not licensed to practice — and the local jurisdiction has not determined such practice is unauthorized – the lawyer may practice if they meet the following guidelines:
- They do not establish an office or other systematic presence in that local jurisdiction.
They do not “hold out” a presence or availability to perform legal services in that local jurisdiction.
They do not actually provide legal services for matters in that local jurisdiction.
The opinion notes that providing local contact information on websites, letterhead, business cards or advertising are examples of communications that would improperly suggest a local office or local presence.
Read the full guidance here.
A study carried out by the ABA in collaboration with the Burton Blatt Institute at Syracuse University has found that lawyers who either identify as having disabilities or who identify as LGBTQ+ commonly report experiencing both subtle and overt forms of discrimination at their workplaces.
The study surveyed 3,590 lawyers, including individuals from every state and the District of Columbia, and was conducted over the course of 2018 to 2019. The study examines individuals with multiple identities that intersect, such as people of differing sexual orientations and gender identities who also have disabilities.
ABA President Judy Perry Martinez has said that the“study is an important first step in working towards a more inclusive and better legal profession by identifying bias and stigmas against LGBTQ+ lawyers as well as lawyers with disabilities. The ABA remains committed to its core goal of eliminating bias and enhancing diversity. Discrimination against people with disabilities and LGBTQ+ individuals, whether structural or unintentional, needs to be eradicated.”
Among the key findings of the study were:
4 of 10 respondents reported perceptions or experiences of subtle but unintentional biases. 1 in 5 respondents noted the experience of subtle and intentional biases.
Approximately 16.6% of the lawyers responding identified as lesbian, gay or bisexual, and 0.4% identified their sexual orientation as open. Of 67 lawyers who were women and identified as LGB with a health condition, slightly more than half reported they had experienced discrimination in their workplaces.
Read the full ABA report.
On the 15th July, the American Bar Association Standing Committee on Ethics and Professional Responsibility released guidance that expands on a model rule that covers a lawyer’s conduct related to harassment and discrimination.
ABA Formal Ethics Opinion 493 outlines how ABA Model Rule of Professional Conduct 8.4(g) addresses actions by a lawyer beyond the courtroom and the context of client representation. This could include operating an office or behaviour at bar association or other business and social events when they are related to the practice of law.
The rule makes it professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination based on various categories, including sex, race, religion, sexual orientation and gender identity. The rule is broader than federal anti-discrimination laws because it also covers conduct that is not severe or pervasive, a standard often utilized for employment discrimination.
The formal opinion notes that most free speech is protected, but the rule is violated by harmful conduct, which “will often be intentional and typically targeted at a particular individual or group of individuals, such as directing a racist or sexist epithet towards others or engaging in unwelcome, nonconsensual physical conduct of a sexual nature.” It said the rule is “critical to maintaining the public’s confidence in the impartiality of the legal system and its trust in the legal profession as a whole.”
Read the formal opinion and the model rule, or read the ABA’s statement on the new guidance.
The American Bar Association has announced the launch of the ABA Racial Equity in the Justice System website. A central resource aimed at providing information to ABA members, attorneys, the profession and the public on issues such as addressing bias, racism and prejudice in the justice system and society. The website will include resources such as ABA policies and positions; articles from publications; statements from the ABA; model rules and standards; CLEs and webinars; toolkits and training; links to ABA diversity, equity and inclusion entities; resources addressing courts and access to justice, law enforcement, and related statements from other bar associations and affinity bars.
ABA President Judy Perry Martinez said “The American Bar Association is intensifying its efforts to ensure justice and fairness for all … For too long, African Americans have borne the brunt of racism through laws that unjustly and disproportionately impact people of color. Through efforts like this website, we want to make it easier for lawyers to access information and become more involved in reforming our laws and improving the justice system.”
Visit the ABA Racial Equity in the Justice System website. See the ABA news release.
On February 17th, during its annual midyear meeting, the American Bar Association (ABA) House of Delegates approved resolution 115, encouraging State Bars to consider innovative approaches to expanding access to justice, particularly focused around improving the affordability and quality of civil legal services.
The resolution initially proposed by the ABA Center for Innovation and supported by several standing committees of the ABA Center for Professional Responsibility, calls on state regulators and Bars to consider regulatory innovations that would improve accessibility, affordability and quality of civil legal services. The resolution initially faced strong opposition from several Bar Associations. However, the resolution received overwhelming support from 596 member house following the addition of a provision stating: “Nothing in this resolution should be construed as recommending any changes to any of the ABA Model Rules of Professional Conduct, including Rule 5.4, as they relate to non-lawyer ownership of law firms, the unauthorized practice of law or any other subject.” Rule 5.4 limits sharing of legal fees with non-lawyers as well as bars non-lawyer equity in law firms.
Further details about the meeting and the resolution are available here.
The proposed resolution and report are available here, with the final resolution available here.