The ABA Model Rules of Professional Conduct serve as models for the ethics rules of most states. Rule 1.6, (confidentiality of information), and Rule 5.3, (responsibilities regarding nonlawyers assistants), are facing possible amendment changes with the ever-changing landscape of law and technology. The ABA Commission on Ethics 20/20 released it’s initial proposal for comment to “account for lawyers’ growing use of technology, especially technology that stores or transmits confidential information.”
Commission Co-chair Michael Traynor, notes that new technologies will continue to change the practice of law. “We are addressing the impact of the technological changes we see now, and pointing out markers that we hope will be useful in the future,” Traynor said.
The commission recommends adding a new paragraph to the existing rule on confidentiality to require lawyers to “make reasonable efforts to prevent the inadvertent disclosure of, or unauthorized access to, confidential information, including information in electronic form.” They are also concerned with the inadvertent transmission of information and recommend that lawyers have a duty to notify the sender of both physical and electronic information under certain circumstances.
Stephanie Kimbro of Kimbro Legal Services has operated a virtual law office in North Carolina since 2006. By taking legal service completely online, Kimbro has encouraged solo and small practitioners to follow suit as a way of leveling the playing field by reaching more clients across the country. Kimbro shared her comments on the changes below.
“The nature of cloud-based technology is that it allows for the creation of computer programs that would be too expensive for a single user to develop and maintain and spreads the cost out among a number of users. It is certainly possible for a lawyer to research the policies and service level agreement with Internet-based service provider to determine whether it is safe to use with a client’s information. The due diligence requirement under Rule 1.6 already addresses the concern that is stated in Comment 3 to Rule 5.3: “the lawyer must make reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer’s professional obligations.” However, these providers are not going to be able to negotiate terms or allow for monitoring or directions from individual law firms or lawyers as its inclusion in Rule 5.3 might imply. Accordingly, I would propose that the example of “using an Internet-based service to store client information” be removed from the proposed changes to Rule 5.3.”
Do you agree? What additional comments do you have to the proposed amendment changes? Please comment, we’d love to hear your feedback.