A New Jersey Supreme Court panel is asking for feedback on proposed ethics rule changes addressing advancing technology, lawyer mobility and globalization.
The Special Committee on Attorney Ethics and Admissions in a notice to the bar Tuesday called for public comments and announced a hearing next month on Rules of Professional Responsibility changes recommended by the American Bar Association.
“Ethical issues related to technology and the Internet are necessarily important to practitioners,” says the committee’s chairman, retired Chief Justice James Zazzali, of counsel at Gibbons in Newark.
“It’s a very exciting opportunity for members of the bench and bar to present their estimations…of how advances in technology and global legal practice are affecting the shape of our profession,” says vice-chairman Paula Franzese, a professor at Seton Hall University School of Law. “These are matters that we believe are commanding a lot of the public colloquy.”
The ABA House of Delegates adopted changes to its Model Rules of Professional Conduct in August 2012 and February 2013, based on recommendations of the Commission on Ethics 20/20, a group of 17 lawyers, judges and academics, after a three-year study.
The affected New Jersey RPCs mirror, and are numbered the same as, the ABA model rules.
One group of possible changes deals with attorney admissions:
• A new rule would allow a non-admitted attorney to be admitted by motion if he or she has practiced in another U.S. jurisdiction in three of the past five years.
• That same lawyer could provide legal services pending admission for up to a year as long as he or she hasn’t been suspended or disbarred, doesn’t advertise here, notifies authorities, and complies with other terms.
• Amended Rule 5.5 would allow that lawyer to practice “through an office or other systematic and continuous presence in this jurisdiction,” though there’s no specific definition yet of “systematic and continuous presence” because of outstanding questions about virtual practice.
• Amended Rule 5.5 also would allow a lawyer admitted in a foreign country to practice here as long as he or she doesn’t need pro hac vice admission, doesn’t give advice on U.S. law unless in consultation with a U.S. lawyer, and has been regulated by the foreign jurisdiction and is in good standing with that authority.
• Also, foreign lawyers would be allowed to register as in-house counsel or to be admitted pro hac vice under the supervision of an in-state attorney, neither of which is currently permitted in New Jersey.
A second set of changes would govern confidentiality issues related to technology:
• Rule 1.1, which requires lawyers to “keep abreast of changes in the law and its practice,” would include “the benefits and risks associated with relevant technology.”
• In Rule 1.0, the term “email” would be replaced with “electronic communication” in the definition of what constitutes a written record of communication, and Rule 1.4, which currently refers only to “telephone calls,” would require that lawyers promptly respond to or acknowledge “client communications.”
• Amended Rule 1.6 would mandate that lawyers “shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client,” and would note that no violation would result from unauthorized access if the lawyer took reasonable steps. Factors in determining reasonableness would include the sensitivity of the information, and the cost and difficulty of additional safeguards. The rule would note that federal and state data-security laws are beyond the scope of the RPCs.
• The strictures of Rules 1.6 and Rule 1.17 also would be loosened to permit more disclosure of confidential client material in order to identify conflicts in connection with firm-to-firm moves and changes in firm ownership.
A third set of changes deals with a miscellany of subjects:
• As amended, Rule 4.4 would include electronically stored information on the list of materials that, if inadvertently sent, require the recipient lawyer to “promptly notify the sender.” Such information would include embedded data.
• Amended Rule 1.18 would more clearly define the term “consultation”—and specify that a consultation has occurred if the lawyer asks and receives information from a prospective client without clearly limiting obligations.
• Rule 7.2 as amended would govern when lawyers may pay a fee for an Internet-based referral. The lawyer could pay another for generating client leads as long as the latter does not “recommend” the lawyer and there’s no illicit fee-splitting. A communication “contains a recommendation if it endorses or vouches for a lawyer’s credentials, abilities, competence, character, or other professional qualities,” the ABA model rules provides.
• Rule 7.3 as amended would modify the terminology of client solicitation, and specify that communication resulting from a client’s Internet search would not qualify as solicitation.
• In addition to the above changes, Rule 1.1 would require client consent for outsourcing any aspect of a matter to an outside attorney, and require steps to ensure the outside lawyer’s competence.
• Changes to Rule 8.5 would allow lawyers and clients on a limited basis to specify which jurisdiction’s ethics rules will apply to a representation. At present, the rules in the jurisdiction in which the conduct occurs, or the jurisdiction in which the lawyer believes the conduct will have the “predominant effect,” apply.
• Another change to Rule 5.5 would mandate that out-of-state lawyers engaged in multijurisdictional practice may not advertise here, even if practicing on a limited basis. It also would prohibit assisting someone else in practicing law in violation of the ethics rules.
In addition to the Ethics 20/20 changes recommended by the ABA, the committee also is seeking comment on: more specific civility and professionalism requirements, safe harbor for subordinate lawyers acting under superiors’ orders, and whether additional language is needed for any existing rules.
The hearing will be held May 15 at 10 a.m. at the State Bar’s annual conference at the Borgata in Atlantic City. Written comments by mail or email are due by June 16.
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