Posted by: johnocunningham | August 15, 2012

New ABA Ethics Rules on Lawyers’ Use of Technology

It is now official. Earlier this month, the American Bar Association (“ABA”) House of Delegates approved recommendations by the 20/20 Commission on Ethics to amend the ABA Model Rules of Professional Conduct.

Thus, we can soon expect authorities responsible for state bar licensing and ethics to incorporate some or all of these recommendations into local rules.

What is important for lawyers to know is that the ABA Model Rules now address the use of technology as it relates to:

  • Client confidentiality;
  • Business development; and
  • Competence in representing a client effectively.

Among other things, the new rules provide that:

  • Lawyers should “keep abreast of changes in the law and its practice… including the benefits and risks associated with relevant technology.”
  • Lawyers should “promptly respond to or acknowledge client communications,” including, by illustration, electronic or other technological communications.
  • Lawyers should “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client,” meaning that lawyers must take measure to prevent hacking and careless data breaches.

The new rules also clarified that:

  • A lawyer can pay another person to generate client leads, such as Internet-based leads, under appropriate circumstances “as long as the lead generator does not recommend the lawyer.”
  • Although a lawyer cannot use any means of soliciting professional employment, including electronic means, where a significant motive for the lawyer’s contact is pecuniary gain, a communication “typically does not constitute a solicitation if it is directed to the general public, such as through an… Internet banner ad, a Website… or if it is in response to a request for information or is automatically generated in response to Internet searches.”

The latter amendment begs the question of what constitutes “the general public.” This change also does not clearly address the now well-established practice of sending out electronic newsletters and tips to a large distribution list of both clients and prospects, which are clearly targeted for generating more business. Presumably, those practices are ethical because they do not make any overt “solicitation” but lawyers should be careful about including overly “solicitous language” in their alerts/newsletters.

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