This afternoon, the ABA House of Delegates approved numerous changes to the Model Rules of Professional Conduct and related ABA policies, adopting all six resolutions proposed by the ABA Commission on Ethics 20/20.
A brief two page summary of the changes can be found here, and you can find the specific amendments that the ABA adopted along with the accompanying reports here. (Resolutions 105A and 105F in the preceding link underwent minor changes after they were posted. The versions of those Resolutions that were actually adopted should be available within the next few days.)
I think you'll find that, although the changes are not revolutionary, the Commission has offered much-needed guidance on a wide range of ethics issues that have been arising with greater frequency due to globalization and rapid changes in technology. If you will be teaching PR this year, I highly recommend that you take a look at the changes, as they impact a number of Rules and issues that PR courses typically cover.
The six resolutions adopted today reflect the bulk of the Commission's proposals, though the Commission will continue to study several remaining issues before the Commission completes its work in February 2013. Those issues relate to virtual law practice, choice of law problems associated with conflicts of interest and nonlawyer ownership, and domestic practice authority for inbound foreign lawyers. (The Commission's continued consideration of the choice of law problems associated with nonlawyer ownership was the subject of a remarkably spirited debate today in the ABA House of Delegates.)
On a personal note, I have had the privilege to serve as the Commission's Chief Reporter. In doing so, I have worked with an extraordinarily talented group of Commissioners, including co-blogger Stephen Gillers and Commission co-chairs Jamie Gorelick and Michael Traynor. I've also had the great fortune of working with fellow Reporters (and Professors) Paul Paton, Tony Sebok and Brad Wendel. Paul was the Reporter for the complicated and politically sensitive issues associated with alternative law practice structures, and Brad and Tony were the Reporters for the Commission's outstanding white paper on alternative litigation finance. Last, and most importantly, I have been very lucky to work with the ABA's Ellyn Rosen, an amazingly dedicated and knowledgeable lawyer who has served as the Commission's counsel and advised the Commission on innumerable issues throughout its tenure. The ABA is fortunate to have her and the many other professionals who assisted the Commission. The Commission is not yet done with its work, but the effort has been wonderfully rewarding, in no small part because I've been able to work alongside such a terrific group of people.
UPDATE:
The as-adopted language can be found here. (See Resolutions 105A-105F). The language that you will find there is accurate, with one exception. There was a friendly amendment from the floor to add the all-caps text that appears below in Comment [3] to Rule 4.4:
[3] Some lawyers may choose to return a document or DELETE electronically stored information unread, for example, when the lawyer learns before receiving it the document that it was inadvertently sent to the wrong address. Where a lawyer is not required by applicable law to do so, the decision to voluntarily return such a document or DELETE electronically stored information is a matter of professional judgment ordinarily reserved to the lawyer. See Rules 1.2 and 1.4.
The point was made (and the Commission agreed) that electronically stored information (such as email) cannot really be returned; it can only be deleted. Thus, the word “delete” was added in the two spots shown above.
UPDATE 2: The ABA's website is a little hard to navigate, so I've created links to the as-adopted resolutions below:
Update 3: This document [updated October 2012 to reflect a technical correction] contains a compilation of all changes to the Model Rules of Professional Conduct and related ABA policies that the House of Delegates approved this week as a result of Resolutions 105A-F. It is more user-friendly than the formal resolution language contained in the documents referenced above.
The Commission did a great job and we all owe them a big "thanks."
Posted by: John Steele | August 07, 2012 at 08:37 AM
While Andy is correct that the "bulk" of the commission's recommendations were addressed this week, the three remaining issues he identifies (at least I expect these will be the only three) may be more controversial. You never know, but that's how it looks right now.
The most intellectually interesting question to me at the moment, though not the most immediately consequential, is when if ever a lawyer's entirely virtual presence in a jurisdiction is the functional equivalent of physical presence for purposes of unauthorized practice laws. If the answer is never, then that will eventually spell the (virtual) demise of a system of lawyer licensing reliant on the physical location of the lawyer. Technology will have eroded what no amount of debate over rules ever could. Though not the most immediately consequential, therefore, this issue may have the greatest effect in the long term.
While Andy generously acknowledges the good work of others, I suspect he has put more time, energy, and thought into the task of the chief reporter here than has been true for other large scale renovations of the rules governing lawyers. And the proof lies in the satisfying events of this week.
Posted by: Stephen Gillers | August 07, 2012 at 09:59 PM
Responding to Prof. Gillers:
Interestingly, it appears that most virtual lawyers/e-lawyering types do not appear to have a problem with requiring a lawyer to be licensed in a state where they are "virtually present." Rather, they appear to differ with existing regulation instead on the issue of whether a license should be required in a state where the lawyer is physically present but does not practice.
For example, if I am licensed in Illinois, and practice only Illinois law, but spend all my time (and thus am presumably "officed") in Missouri, do I need to be licensed in Missouri? A Missouri ethics opinion answers "yes," an answer that I understand as consistent with the law in most jurisdictions. E-lawyers appear generally to believe that the answer to this question should instead be "no."
Posted by: Michael Downey | August 08, 2012 at 12:09 AM
I add my kudos and congratulations to Prof. Perlman, Prof. Gillers, and all others involved in the Ethics 20/20 Commission's work. The changes that were made seem to be a nice step forward.
I have to wonder, however, if some of the proposals would have faced greater resistance had Resolution 10A not distracted everyone's attention. In particular, I thought the language about technological competence in the comment to Rule 1.1, while a good addition, was something that others might not like. But this, like the appointment of Justice Scalia, seemed to get lost because of another controversy (fee-sharing and non-lawyer ownership of law firms).
Posted by: Michael Downey | August 08, 2012 at 12:13 AM
The Illinois/Missouri example is what Richard Granat (an ABA Journal Legal Rebel) does so successfully between Florida and Maryland/DC and without a problem. It is also what happens when lawyers spend the summer in Nantucket or Aspen while continuing their practice, virtually, "in" New York or California, also without trouble. In each case the lawyer is professionally invisible in the state in which he or she is physically present.
Posted by: Stephen Gillers | August 08, 2012 at 08:07 PM
In response to Prof. Giller's most recent comment, I agree that such a practitioner may be invisible. That does not mean, however, that it is ethical.
in fact, I chose the states deliberately because there is a Missouri informal ethics opinion on point, one that is generally consistent with other jurisdictions interpretations--although it is a position that I believe Granat rejects. The relevant portion of the opinion, Missouri Opinion 20030078, states:
QUESTION: Attorney is licensed in Illinois and attempting to become licensed in Missouri. Attorney's office is located in Missouri. (1) Can Attorney practice Illinois law from the office in Missouri? (2) Can Attorney conduct any business for the Illinois practice from the Missouri office? If so, what activities can be performed from the Missouri office? (3) Can Attorney be included on Missouri office letterhead indicating attorney is licensed in Illinois only? (4) Can Attorney perform the functions of a paralegal or any other work with respect to cases pending in Missouri?
ANSWER: Questions 1. and 4. No, Attorney may not engage in conduct that constitutes the practice of law, while physically located in Missouri. However, Attorney may function as a law clerk or paralegal, as long as Attorney is not held out as an attorney in connection with those functions.
Question 2. Yes, Attorney may conduct business for the Illinois practice from the Missouri office, as long as Attorney's conduct does not constitute the practice of law and Attorney does not state or imply that Attorney is licensed in Missouri.
Question 3. Yes.
Attorney could practice law in Missouri while waiting to take the Bar exam if Attorney obtains a temporary license under Missouri Supreme Court Rule 8.115.
Posted by: Michael Downey | August 08, 2012 at 10:42 PM
This opinion, very brief, seems to posit an office, letterhead, professional presence in MO. That is not Granat's situation, of course. If the opinion is read more broadly and is correct. an IL lawyer with a summer home in MO (improbable as that is) could not advise IL clients from her summer home during a two month vacation in MO. Just imagine what such a rule would do. Actually, on my recent trip to IL, I advised a national law firm via phone call to a lawyer who was vacationing in a western state and who is admitted in IL and the other state. The subject was not focused on a particular state's rules. Am I in trouble if the MO rule applies or is it OK as MJP? And while in France... well, never mind. I don't think you can tease much out of this MO opinion which is no longer than Michael posts.
Does anyone have a case in which a Granat type person was sanctioned?
As I mentioned to Andy recently, a prominent lawyer admitted in state X but who spends a good deal of time in state Y, where he is not admitted, asked the Y regulators whether he can counsel his clients in X via phone, fax, email, etc., during his extended stays in Y. They didn't care. He did it from his Y home. He did not offer services to the Y residents, who would have no reason to know he was even there or that he was a lawyer. Or should we say the lawyer has to fly home for a day every other week?
Posted by: Stephen Gillers | August 09, 2012 at 10:31 AM
On the Illinois, Missouri, Nantucket, Aspen, Florida merry-go-round, I think a lot of jurisdictions make a (huge) distinction between vacationers and residents. (I was an Indiana lawyer snowbirding in Florida for many years before becoming a Florida resident--whereupon I took the Bar from scratch.)
That distinction is, I assume, why Ethics 20/20 proposed the salutary new Model Rule on Practice Pending Admission. (I once represented a brilliant prosecutor who moved physically from New York to Indiana to head up a drug task force. She was stuck in the following Catch-22: she was not admitted to practice in Indiana (yet), but because was (already) an Indiana resident, she was not eligible to appear pro hac vice.
Posted by: Bill Hodes | August 19, 2012 at 12:25 PM
Following up, when the former New Yorker's prosecutor boss was called back into service in Naval Intelligence post-9/11, he wanted to leave my client in charge. She was almost denied permanent admission because of the claim that she was practice law without a licence in Indiana before being admitted (thus showing a propensity not to obey law), and her boss was brought up on charges for aiding the unauthorized practice!
Both cases eventually came out OK, but they make the point of my original post: even in a virtual practice world, jurisdiction care a lot about where you reside--more than they care where you are officed.
Posted by: Bill Hodes | August 19, 2012 at 12:31 PM