The American Bar Association commission in charge of revising attorney ethics rules has concluded three years of work, resulting in some important changes to the provisions governing lawyer conduct.
The ABA House of Delegates on February 11 adopted the final recommendations made by the Commission on Ethics 20/20, a group of 17 lawyers, judges and scholars formed in 2009 to revise the Model Rules of Professional Conduct. The House of Delegates approved its last four recommendations during its midyear meeting in Dallas.
In all, the changes, which focus on advancements in technology and the globalization of legal practice, affect more than a dozen provisions in the code. Established in 1983, the ABA Model Rules serve as the framework for ethics rules in every state except California.
Included in the changes are rules governing outsourcing of legal services, admission of foreign attorneys, client confidentiality and conflicts of interest.
One change applies to firms that are merging and to attorneys who change firms. It loosens restrictions on the information attorneys can disclose about their clients when determining whether conflicts exist. Other revisions shorten the number of years attorneys have to practice before they can be admitted in another jurisdiction.
Still others require attorneys to ensure that client information stored electronically is safeguarded and to obtain consent from clients if lawyers outsource some of their legal work.
Perhaps most significant is what the commission did not do: allow non-lawyers to own stakes in law firms. "The most controversial issue of all of the proposals was one that the commission did not put forward," said Andrew Perlman, a professor at Suffolk University Law School who served as commission reporter.
Nonlawyer ownership of firms is permitted in the U.K., Australia and the District of Columbia.
"I don’t see the harm in it," said Theodore Schneyer, who pushed for the change as a member of the commission. Opponents argued that non-lawyer ownership interferes with the loyalty and fiduciary duties that attorneys owe their clients.
Commission members were concerned that strong opposition to the idea would have jeopardized the adoption of the other proposed changes, Schneyer said.
The final resolutions that the House of Delegates approved on February 11 addressed foreign attorneys practicing in the United States, another controversial issue. The changes allow those attorneys to serve as in-house counsel without meeting standard bar admission requirements as long as they refrain from giving independent advice about state or federal law. Another provision gives judges guidelines for admitting foreign lawyers into court in specific cases.
House of Delegates member Larry Fox strongly opposed the initial revisions to the foreign-attorney rule. He argued that they would have allowed attorneys from countries with vastly different laws and ethics rules to practice in this country, to the client’s detriment. The proposal that went before a delegate vote was a narrower, improved version than initially floated, said Fox, a partner at Drinker Biddle &Reath.
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