Regulators are poised to consider radical rule changes that could decisively open the way to allowing non-lawyers into the legal profession of the US’s most populous state.
The State Bar of California voted earlier this month to accept a report from legal academic Professor William D. Henderson calling for structural reforms to the way the market is regulated. The bar’s board of trustees further resolved to authorise a taskforce to study and come back with recommendations for reforms that balance the goals of public protection and increased access to justice.
The taskforce proposals – not expected until 2019 – could pave the way for a version of the alternative business structure regime in the UK and Australia, allowing a system where non-lawyers are able to own law firms and legal businesses are able to take on external capital investment. Despite repeated attempts to encourage liberalisation in the US – and not withstanding sporadic examples of legal markets opening to outsiders – the US profession has overwhelmingly resisted emulating England and Wales.
In his report, Prof Henderson cited the problem of ‘lagging legal productivity’ and that, in contrast to medical care and higher education, a growing proportion of US consumers are choosing to forgo legal services rather than pay a higher price.
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The New York City Bar Association’s E-Discovery Working Group issued a report examining the challenges of conducting discovery when the scope of discovery exceeds US borders. The Committee lays out the most common circumstances in which cross-border discovery would occur, including issues of personal jurisdiction over foreign parties as well as cases of US subsidiaries of foreign parent company. It discusses a number of regulations, statutes and treaties that govern cross-border discovery. The Committee also considers laws of foreign entities, including the GDPR in the Europe Union, as well as US case law that may restrict cross-border discovery. It concludes with a set of best practices for navigating foreign law that restricts discovery.
Read the full report
The American Bar Association Standing Committee on Ethics and Professional Responsibility has issued Formal Opinion 480 explaining the limitations the Model Rules of Professional Conduct place on lawyers who blog or engage in other social commentary related to a representation.
Under Model Rule 1.6(a) a lawyer has a duty of confidentiality. Supporting language to the model rule, known as a Comment, emphasizes that a fundamental principle of the legal profession is that a lawyer must not reveal any information relating to the representation without the informed consent of the client. The opinion notes that unless one of the exceptions to Model Rule 1.6(a) applies to a situation, the lawyer is barred for commenting publicly about the representation.
With more lawyers blogging and offering social commentary, Formal Opinion 480 is intended to provide guidance on the parameters of such activity. It also serves as guidance to state licensing agencies to help interpret their own rules of professional conduct. The opinion adds that the ethical rules of many jurisdictions establish confidentiality rules even before formal representation begins and well beyond the end of the professional relationship.
The opinion warns lawyers against using hypotheticals in blogging and social commentary when there is a “reasonable likelihood” that a third party might ascertain the identify or situation of the client from the facts in the hypothetical. “The salient point is that when a lawyer participates in public commentary that includes client information, if the lawyer has not secured the client’s informed consent or the disclosure is not otherwise impliedly authorized to carry out the representation, then the lawyer violates Rule 1.6(a),” the opinion said.
Read the full Formal Opinion
Technology was very much a topic of conversation at the 2017 ICLR Meeting in Singapore. Regulators are using technology to help them better focus their work and resources. In the context of access to legal services and access to justice, technology offers consumers ways to connect with lawyers and to get help. And, technology helps lawyers market themselves and their services.
With constant changes in technology, how lawyers advertise and market their services, domestically and internationally, remains a topic of high interest. Some countries prohibit lawyer advertising. Others permit it, but regulate it to varying degrees. In the U.S., while generally following the ABA Model Rules of Professional Conduct, there is significant jurisdictional variation in how lawyer advertising and marketing is regulated. The ABA Standing Committee on Ethics and Professional Responsibility has undertaken a comprehensive study of the ABA Model Rules on this subject in the interest of furthering uniformity, but also because its members concluded that the current advertising rules are outdated and may hinder the ability of lawyers to adapt to changing technology. In addition, the Committee recognizes that consumers frequently use technology to learn about and access legal services.
The Committee intends to present a proposal to amend these Model Rules to the ABA House of Delegates for consideration in August 2018. The Committee’s Working Draft of the proposed amendments to the ABA Model Rules of Professional Conduct and Memorandum explaining those changes is out for review and comment. All written comments on the Working Draft should be filed by March 1, 2018. Comments may be emailed to email@example.com. All comments will be posted on the ABA website.
The ABA Center for Professional Responsibility continues its work to educate the profession about Proactive Management-Based Regulation, and to provide resources and tools to regulators and others on this subject. The Center has launched a new PMBR web resource, which includes US and International resources. Colorado has launched its voluntary self-assessment program, and Illinois is in the process of implementing its new PMBR self-assessment and education rules for lawyers in the state who do not carry malpractice insurance. The Center will continue its work in this area and welcomes from ICLR members information to add to its PMBR web resource.
Thank you to Ellyn Rosen, Regulation and Global Initiatives Counsel, ABA Center for Professional Responsibility for providing this update.
A coalition of groups, including the American Bar Association Commission on Lawyer Assistance Programs, have released a comprehensive report, The Path to Lawyer Well-Being: Practical Recommendations for Positive Change, aimed at addressing the problem of substance use and mental health disorders of lawyers.
The report, by the National Task Force on Lawyer Well-Being, includes several dozen recommendations and represents the most ambitious roadmap yet related to the well-being of lawyers. It is intended to spark a broader conversation in the legal profession regarding reasons behind substance use disorders as well as the effects of impairment to guide policy changes and to lead to a cultural shift within the profession.
Last week, the Conference of Chief Justices, which participated in the development of the report, gave the recommendations its endorsement. Other groups involved in the drafting of the task force report were the National Organization of Bar Counsel, the Association of Professional Responsibility Lawyers and the National Conference of Bar Examiners.
This report’s recommendations focus on five central themes:
- Identifying stakeholders and the role each can play in reducing the level of toxicity in the legal profession.
- Eliminating the stigma associated with help-seeking behaviors.
- Emphasizing that well-being is an indispensable part of a lawyer’s duty of competence.
- Educating lawyers, judges and law students on lawyer well-being issues.
- Taking small, incremental steps to change how law is practiced and how lawyers are regulated to instill greater well-being in the profession.
Link to the full report
Join the National Organisation of Bar Counsel (NOBC) in New York on 9-12 August 2017 for its Annual Meeting. You’ll get the opportunity to meet and learn from others who face the same issues. Session topics include: ‘A discussion about “attacks” on regulatory counsel (and how to deal with them)’, ‘Interplay Between Disciplinary Agencies and Client Protection Funds’ and ‘The Crucible of Lawyer Discipline: The Role of Public Shaming in Promoting Professional Conduct and Protecting the Public’.
Link to full programme and registration details
The month of May saw two technology and legal regulation issues come to light in the US.
Cyber security and client communications
The changing technological landscape and rising incidence of “cyber intrusion” prompted the ABA’s ethics committee to update an 18-year-old opinion on whether lawyers must use encrypted e-mail when communicating with clients. Technologically, much has changed in the past 18 years regarding how lawyers and clients communicate. Unfortunately lawyers are often the weak link in the cyber security chain making them an obvious target for cyber criminals. Read more…
Florida Supreme Court rejects proposal to regulate online ‘legal matchmakers’
The Florida Supreme Court on May 3 rejected a controversial proposal—supported by state bar leaders but opposed by some of the most successful legal technology startups—that would have subjected companies in the burgeoning “legal matchmaking” industry to regulation by state bar authorities. The proposed rule changes could have subjected some of the most disruptive industry startups—including LegalZoom, RocketLawyer, UpCounsel and Avvo—to a host of regulatory requirements that may have increased their operating costs or required them to revise plans to plow resources into the legal matchmaking sector. Read more…
From May 31 through June 2, 2017, the American Bar Association Center for Professional Responsibility held its 43rd ABA National Conference on Professional Responsibility. The National Conference has long been the premier event of its kind in the U.S., bringing together legal scholars, jurists, regulators, and specialists in the professional responsibility field for two days of intensive programming addressing a wide range of issues. National Conference topics cover recent domestic and international trends and developments in legal ethics, professional discipline, bar admissions, professionalism, and practice issues. This year, a session about improving the health and wellness of the profession will be echoed with a regulator focus by a panel on this subject at the upcoming International Conference of Legal Regulators (ICLR) in Singapore (Day 1, Session 4). Other sessions focused on data security, multijurisdictional practice issues, and unique ethics issues faced by government lawyers.
Held in conjunction with the National Conference were the annual National Forum on Client Protection, Specialization Roundtable, and the 3rd Annual Workshop on Proactive Management-Based Regulation (PMBR). This successful Workshop designed for regulators opened with remarks from the Chief Justice of the Illinois Supreme Court, Lloyd A. Karmeier. Chief Justice Karmeir spoke about his Court’s adoption of new PMBR self-assessment and education rules for lawyers in the state who do not carry malpractice insurance. This regulatory mechanism is the first of its kind in the U.S., with Colorado having adopted Regulatory Objectives earlier and being in the process of implementing a voluntary self-assessment program. Facilitated by these Center for Professional Responsibility Workshops, a number of other U.S. jurisdictions are now studying PMBR. There will be a session at the 2017 ICLR regarding success stories in Risk-Based Regulation, moderated by Victoria Rees – Director of Professional Responsibility, Nova Scotia Barristers’ Society.
You may review detailed summaries of a number of National Conference and Client Protection Forum panels in this ABA/BNA Lawyers’ Manual on Professional Responsibility summary.
Ellyn S. Rosen