Legal Ethics Forum

Ethics 20/20 Proposal to Amend Rule 1.1 (Competence)

Rule 1.1 Competence

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

COMMENT

. . .

Retaining or Contracting With Other Lawyers

[6]  Before a lawyer retains or contracts with other lawyers outside the lawyer’s own firm to provide or assist in the provision of legal services to a client, the lawyer should ordinarily obtain informed consent from the client and must reasonably believe that the other lawyers’ services will contribute to the competent and ethical representation of the client.  See also Rules 1.2 (allocation of authority), 1.4 (communication with client), 1.5(e) (fee sharing), 1.6 (confidentiality), and 5.5(a) (unauthorized practice of law).  The reasonableness of the decision to retain or contract with other lawyers outside the lawyer’s own firm will depend upon the circumstances, including the education, experience and reputation of the nonfirm lawyers; the nature of the services assigned to the nonfirm lawyers; and the legal protections, professional conduct rules, and ethical environments of the jurisdictions in which the services will be performed, particularly relating to confidential information. When using the services of nonfirm lawyers in providing legal services to a client, a lawyer also should reasonably believe that such services meet the standard of competence under this Rule.

[7] Where the client has chosen or suggested lawyers from other law firms to assist in the provision of legal services to the client on a particular matter, the law firms who will be assisting the client on that matter should consult with each other and the client about the allocation or scope of representation and responsibility, including the allocation of responsibility for monitoring and supervising any nonfirm nonlawyers who will be working on the client’s matter.  See Rules 1.2 and 5.3. When making allocations of responsibility in a matter pending before a tribunal, lawyers and parties may have additional obligations that are a matter of law beyond the scope of these Rules.

 

The Commission's Explanation for the Proposal

Model Rule 1.1 requires a lawyer to perform legal services competently. The Commission concluded that, in light of the frequency with which lawyers now outsource work to another lawyer or law firm, the Comments to Rule 1.1 should be expanded to refer specifically to the practice. 

The Commission concluded that Model Rule 1.1 is the appropriate location for this guidance for two reasons.  First, Comment [1] to Model Rule 1.1 already addresses a related subject: a lawyer’s duty to associate with another lawyer to ensure competent representation of a client.  Model Rule 1.1, cmt. [1].  Second, as Formal Opinion 08-451 makes clear, the primary ethical consideration when retaining a nonfirm lawyer is whether the nonfirm lawyer is competent to assist in the representation. The Commission considered other locations for the new commentary, including Rule 1.2 (Scope of Representation and Allocation of Authority Between Client and Lawyer), but concluded that the primary ethical consideration when retaining nonfirm lawyers is the competence of those nonfirm lawyers and that Rule 1.1 is therefore the appropriate location for further guidance. 

The first sentence of the proposed new Comment [6] restates a general position expressed in ABA Formal Opinion 08-451 and in the various state and local ethics opinions cited in this Report: lawyers should ensure that the outsourced services will be performed competently and that they contribute to the overall competent and ethical representation of the client.

The first sentence also explains that, ordinarily, a lawyer should obtain a client’s informed consent before retaining a nonfirm lawyer.  The Commission was reluctant to conclude that consent is always required, because consent may not be necessary when a nonfirm lawyer is hired to perform a discrete and limited task, especially if the task does not require the disclosure of confidential information.  Nevertheless, the Commission concluded that consent will typically be required, and will almost always be advisable, when a nonfirm lawyer is retained to assist on a client’s matter. 

Following the first sentence is a list of other Rules that lawyers should consult when retaining nonfirm lawyers.  The Commission concluded that these Rules are commonly implicated in this context and that lawyers should be aware of their potential application. 

The next sentence lists several factors that lawyers should consider when retaining nonfirm lawyers. This list is not intended to be exhaustive, but is intended to give lawyers some guidance regarding some of the most important considerations to take into account when retaining nonfirm lawyers.

The third sentence provides guidance regarding the lawyer’s assessment of the work that the nonfirm lawyer performs. In particular, the lawyer should ensure that the nonfirm lawyer’s work is performed in a manner that is consistent with the lawyer’s own duty of competence. This sentence differs from the first sentence in the Comment in that the first sentence requires the lawyer to conclude, before retaining the nonlawyer, that the nonlawyer will contribute to the competent representation of the client. The last sentence suggests, however, that the lawyer should conclude that the services that the nonlawyer actually performed after being retained were performed competently.  In many circumstances, the lawyer will not have to independently confirm that the work performed by the nonfirm lawyers was performed competently.  In other circumstances, however, it may be necessary to do so (e.g., the lawyer has reason to believe that the work of the nonfirm lawyer may not have been performed competently).

Proposed Comment [7] is intended to describe a lawyer’s obligations when a client requests multiple firms to perform discrete legal tasks concerning the same legal matter.  In such situations, the law firms that will be assisting the client on that matter should consult with each other and the client about the allocation or scope of representation and responsibility, including the allocation of responsibility for monitoring and supervision of any nonfirm lawyers who will be working on the client’s matter.  (The word “monitoring” is drawn from new proposed language in Rule 5.3 and is described in Part V of this Report.)  When making any allocations of responsibility, the proposed Comment reminds lawyers that they (and their clients) might have additional obligations that are a matter of law beyond the scope of these Rules, particularly in the context of discovery.

Finally, although the new Comments address outsourcing, the Commission’s does not use the word “outsourcing” in its proposed additions to the official Comments.  The Commission concluded that, in this context, lawyers are more familiar with the concept of “retaining” or “contracting with” a nonfirm lawyer and that the word “outsourcing” would create unnecessary confusion.  Moreover, the word “outsourcing” may become dated or fall out of use, to be replaced by a new term-of-art.  Thus, the Commission retained the traditional terminology, but concluded that outsourcing as it occurs today is conceptually identical to the retention of nonfirm lawyers.

Ethics 20/20 Proposal to Amend Rule 7.3 (Direct Contact with Prospective Clients)

Rule 7.3 Direct Contact With Potential Prospective Clients 

(a) A lawyer shall not by in-person, live telephone or real-time electronic contact, solicit professional employment from a prospective client when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain, unless the person contacted:

    (1) is a lawyer; or

    (2) has a family, close personal, or prior professional relationship with the lawyer.

(b) A lawyer shall not solicit professional employment from a prospective client by written, recorded or electronic communication or by in-person, telephone or real-time electronic contact even when not otherwise prohibited by paragraph (a), if:

    (1) the prospective client target of the solicitation has made known to the lawyer a desire not to be    solicited by the lawyer; or

    (2) the solicitation involves coercion, duress or harassment.

(c) Every written, recorded or electronic communication from a lawyer soliciting professional employment from anyone a prospective client known to be in need of legal services in a particular matter shall include the words "Advertising Material" on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication is a person specified in paragraphs (a)(1) or (a)(2).

(d) Notwithstanding the prohibitions in paragraph (a), a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses in-person or telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan.

COMMENT

[1] A solicitation is a targeted communication initiated by the lawyer that is directed to a specific person and that offers to provide, or can reasonably be understood as offering to provide, legal services.  In contrast, a lawyer’s communication typically does not constitute a solicitation if it is directed to the general public, such as through a billboard, an Internet banner advertisement, a website or a television commercial, or if it is in response to a request for information or is automatically generated in response to Internet searches. 

[12] There is a potential for abuse when a solicitation involves inherent in direct in-person, live telephone or real-time electronic contact by a lawyer with someone a prospective client known to need legal services. These forms of contact between a lawyer and a prospective client subject the layperson to the private importuning of the trained advocate in a direct interpersonal encounter. The layperson prospective client, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult fully to evaluate all available alternatives with reasoned judgment and appropriate self-interest in the face of the lawyer’s presence and insistence upon being retained immediately. The situation is fraught with the possibility of undue influence, intimidation, and over-reaching. 

[23] This potential for abuse inherent in direct in-person, live telephone or real-time electronic solicitation of prospective clients justifies its prohibition, particularly since lawyers have advertising and written and recorded communication permitted under Rule 7.2 offer alternative means of conveying necessary information to those who may be in need of legal services. Advertising and written and recorded In particular, communications, can which may be be mailed or autodialed or transmitted by email or other electronic means that do not involve real-time contact and do not violate other law governing solicitations.  These forms of communications and solicitations make it possible for the public a prospective client to be informed about the need for legal services, and about the qualifications of available lawyers and law firms, without subjecting the a layperson prospective client to direct in-person, telephone or real-time electronic persuasion that may overwhelm the layperson’s client's judgment. 

[34] The use of general advertising and written, recorded or electronic communications to transmit information from lawyer to the public prospective client, rather than direct in-person, live telephone or real-time electronic contact, will help to assure that the information flows cleanly as well as freely. The contents of advertisements and communications permitted under Rule 7.2 can be permanently recorded so that they cannot be disputed and may be shared with others who know the lawyer. This potential for informal review is itself likely to help guard against statements and claims that might constitute false and misleading communications, in violation of Rule 7.1. The contents of direct in-person, live telephone or real-time electronic conversations between a lawyer and a prospective client contact can be disputed and may not be subject to third-party scrutiny. Consequently, they are much more likely to approach (and occasionally cross) the dividing line between accurate representations and those that are false and misleading.

[45] There is far less likelihood that a lawyer would engage in abusive practices against an individual who is a former client, or with whom the lawyer has close personal or family relationship, or in situations in which the lawyer is motivated by considerations other than the lawyer's pecuniary gain. Nor is there a serious potential for abuse when the person contacted is a lawyer. Consequently, the general prohibition in Rule 7.3(a) and the requirements of Rule 7.3(c) are not applicable in those situations. Also, paragraph (a) is not intended to prohibit a lawyer from participating in constitutionally protected activities of public or charitable legal-service organizations or bona fide political, social, civic, fraternal, employee or trade organizations whose purposes include providing or recommending legal services to its members or beneficiaries.

[56] But even permitted forms of solicitation can be abused. Thus, any solicitation which contains information which is false or misleading within the meaning of Rule 7.1, which involves coercion, duress or harassment within the meaning of Rule 7.3(b)(2), or which involves contact with a prospective client someone who has made known to the lawyer a desire not to be solicited by the lawyer within the meaning of Rule 7.3(b)(1) is prohibited. Moreover, if after sending a letter or other communication to a client as permitted by Rule 7.2 the lawyer receives no response, any further effort to communicate with the recipient of the communication prospective client may violate the provisions of Rule 7.3(b).

[67] This Rule is not intended to prohibit a lawyer from contacting representatives of organizations or groups that may be interested in establishing a group or prepaid legal plan for their members, insureds, beneficiaries or other third parties for the purpose of informing such entities of the availability of and details concerning the plan or arrangement which the lawyer or lawyer's firm is willing to offer. This form of communication is not directed to people who are seeking legal services for themselves. a prospective client. Rather, it is usually addressed to an individual acting in a fiduciary capacity seeking a supplier of legal services for others who may, if they choose, become prospective clients of the lawyer. Under these circumstances, the activity which the lawyer undertakes in communicating with such representatives and the type of information transmitted to the individual are functionally similar to and serve the same purpose as advertising permitted under Rule 7.2.

. . .

Explanation for the Commission's Proposal

Rule 7.3 regulates a lawyer’s direct contacts with potential clients.  Paragraph (a) prohibits most kinds of in-person, live telephone, and real-time electronic solicitations, but the Rule permits (and regulates) other forms of solicitations, such as those sent by direct mail and email. 

The Commission concluded that lawyers would benefit from a clearer definition of what kinds of communications constitute a “solicitation” and thus fall within the scope of Rule 7.3.  In the early days of the Internet, little such guidance was needed.  Ethics opinions had concluded that emails constituted a solicitation and were governed by Rule 7.3, but that less targeted forms of advertising (such as websites) were not governed by the Rule.[1]  Today, however, lawyers can post information on their social or professional networking pages (which function like websites), but can control the viewers and enter into conversations via those pages (like email).  Similarly, some websites allow lawyers and potential clients to interact, sometimes in “real-time” and sometimes not.  The Commission was advised that lawyers are uncertain as to whether these new forms of Internet-based activities fall within Rule 7.3. 

The Commission concluded that, to address this ambiguity, lawyers need a clearer definition of a “solicitation.”  A new proposed Comment [1] would explain that a lawyer’s communications constitute a solicitation when the lawyer “offers to provide, or can be reasonably understood to be offering to provide, legal services to a specific potential client.”  The phrase “reasonably understood to be offering to provide” is intended to ensure that lawyers are governed by the Rule even if their communications do not contain a formal offer of representation, but are nevertheless clearly intended for that purpose.  For example, if a lawyer approaches potential clients at their homes and describes various legal services, the lawyer’s communications constitute a “solicitation” even if the lawyer does not formally offer to provide those services, as long as a reasonable person would interpret the lawyer’s communications as an offer to provide those services. 

The second sentence is designed to clarify that responses to requests for information and advertisements that are not directed to specific people are not “solicitations.”  For example, the sentence makes clear that advertisements that are automatically generated in response to an Internet search are not solicitations.  Because those advertisements are generated in response to Internet research, they are more analogous to a lawyer’s response to a request for information (which is not a solicitation) than an unsolicited and targeted letter to a potential client who is known to be in need of a particular legal service (which is a solicitation). These examples are intended to clarify when a lawyer’s activities constitute a solicitation and are thus governed by Rule 7.3. 

The Commission concluded that additional elaboration on this point also would be useful in renumbered Comment [3].  In particular, technology has enabled various kinds of online interactions between lawyers and potential clients.  The clarifying language makes clear that lawyers do not violate paragraph (a) if they are responding to a request for information, which can occur in many settings, including online. 

The Commission’s research also revealed that “autodialing” (or “robo-calling”) is now unlawful in many situations.  See, e.g., 47 U.S.C. 227(b).  As a result, the Commission proposes to delete the reference to “autodialing” in renumbered Comment [3] and to remind lawyers that other law often governs a lawyer’s conduct in this area.

Finally, the Commission’s proposal addresses a matter of terminology.  With the creation of Rule 1.18 in 2002, the phrase “prospective client” refers to a potential client who has actually shared information with a lawyer.  Rule 7.3 clearly intends to cover contacts with all possible future clients, not just those who have had some contact with lawyers and have become “prospective clients” under Rule 1.18.  (See the description of Model Rule 1.18 earlier in this Report.)  Accordingly, the Commission proposes to replace the word “prospective” with the word “potential” throughout Rule 7.3 and its Comments. 

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[1] Such communications, however, may be governed by other rules, including Rule 7.1 (communications concerning a lawyer’s services). 

Ethics 20/20 Proposal to Amend Rule 7.2 (Advertising)

Rule 7.2 Advertising 

(a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media.

(b) A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may

    (1) pay the reasonable costs of advertisements or communications permitted by this Rule;

    (2) pay the usual charges of a legal services plan or a not-for-profit or qualified lawyer referral service. A qualified lawyer referral service is a lawyer referral service that has been approved by an appropriate regulatory authority;

    (3) pay for a law practice in accordance with Rule 1.17; and

    (4) refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if

    (i) the reciprocal referral agreement is not exclusive, and

    (ii) the client is informed of the existence and nature of the agreement.

(c) Any communication made pursuant to this Rule shall include the name and office address of at least one lawyer or law firm responsible for its content.

COMMENT

[1] To assist the public in learning about and obtaining legal services, lawyers should be allowed to make known their services not only through reputation but also through organized information campaigns in the form of advertising. Advertising involves an active quest for clients, contrary to the tradition that a lawyer should not seek clientele. However, the public's need to know about legal services can be fulfilled in part through advertising. This need is particularly acute in the case of persons of moderate means who have not made extensive use of legal services. The interest in expanding public information about legal services ought to prevail over tradition. Nevertheless, advertising by lawyers entails the risk of practices that are misleading or overreaching.

[2] This Rule permits public dissemination of information concerning a lawyer's name or firm name, address, email address, website, and telephone number; the kinds of services the lawyer will undertake; the basis on which the lawyer's fees are determined, including prices for specific services and payment and credit arrangements; a lawyer's foreign language ability; names of references and, with their consent, names of clients regularly represented; and other information that might invite the attention of those seeking legal assistance.

[3] Questions of effectiveness and taste in advertising are matters of speculation and subjective judgment. Some jurisdictions have had extensive prohibitions against television and other forms of advertising, against advertising going beyond specified facts about a lawyer, or against "undignified" advertising.  Television, the Internet, and other forms of electronic communication are is now one of among the most powerful media for getting information to the public, particularly persons of low and moderate income; prohibiting television, Internet, and other forms of electronic advertising, therefore, would impede the flow of information about legal services to many sectors of the public. Limiting the information that may be advertised has a similar effect and assumes that the bar can accurately forecast the kind of information that the public would regard as relevant. Similarly, electronic media, such as the Internet, can be an important source of information about legal services, and lawful communication by electronic mail is permitted by this Rule. But see Rule 7.3(a) for the prohibition against the a solicitation of a prospective client through a real-time electronic exchange initiated by the lawyer. that is not initiated by the prospective client.

[4] Neither this Rule nor Rule 7.3 prohibits communications authorized by law, such as notice to members of a class in class action litigation.

Paying Others to Recommend a Lawyer

[5] Lawyers are not permitted to pay others for channeling professional work recommending the lawyer’s services.  A communication contains a recommendation if it endorses or vouches for a lawyer’s credentials, abilities, competence, character, or other professional qualities.  Paragraph (b)(1), however, allows a lawyer to pay for advertising and communications permitted by this Rule, including the costs of print directory listings, on-line directory listings, newspaper ads, television and radio airtime, domain-name registrations, sponsorship fees, banner ads, Internet-based advertisements, and group advertising. A lawyer may compensate employees, agents and vendors who are engaged to provide marketing or client development services, such as publicists, public-relations personnel, business-development staff and website designers.  Moreover, a lawyer may pay others for generating client leads, such as Internet-based client leads, as long as the lead generator affirmatively states that it does not recommend the lawyer, any payment to the lead generator is consistent with Rules 1.5(e) (division of fees) and 5.4 (professional independence of the lawyer), and the lead generator’s communications are consistent with Rule 7.1 (communications concerning a lawyer’s services).  To comply with Rule 7.1, the lawyer must ensure that the lead generator discloses that the lawyer has paid a fee in exchange for the lead and that the lead generator does not state or imply that it has analyzed a person’s legal problems when determining which lawyer should receive the referral.  See also Rule 5.3 for the duties of lawyers and law firms with respect to the conduct of nonlawyers. who prepare marketing materials for them.

[6] A lawyer may pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service. A legal service plan is a prepaid or group legal service plan or a similar delivery system that assists people who seek prospective clients to secure legal representation. A lawyer referral service, on the other hand, is any organization that holds itself out to the public as a lawyer referral service. Such referral services are understood by laypersons to be consumer-oriented organizations that provide unbiased referrals to lawyers with appropriate experience in the subject matter of the representation and afford other client protections, such as complaint procedures or malpractice insurance requirements. Consequently, this Rule only permits a lawyer to pay the usual charges of a not-for-profit or qualified lawyer referral service. A qualified lawyer referral service is one that is approved by an appropriate regulatory authority as affording adequate protections for the public. prospective clients. See, e.g., the American Bar Association’s Model Supreme Court Rules Governing Lawyer Referral Services and Model Lawyer Referral and Information Service Quality Assurance Act (requiring that organizations that are identified as lawyer referral services (i) permit the participation of all lawyers who are licensed and eligible to practice in the jurisdiction and who meet reasonable objective eligibility requirements as may be established by the referral service for the protection of the public prospective clients; (ii) require each participating lawyer to carry reasonably adequate malpractice insurance; (iii) act reasonably to assess client satisfaction and address client complaints; and (iv) do not make referrals prospective clients to lawyers who own, operate or are employed by the referral service).

[7] A lawyer who accepts assignments or referrals from a legal service plan or referrals from a lawyer referral service must act reasonably to assure that the activities of the plan or service are compatible with the lawyer’s professional obligations. See Rule 5.3. Legal service plans and lawyer referral services may communicate with prospective clients, but such communication must be in conformity with these Rules. Thus, advertising must not be false or misleading, as would be the case if the communications of a group advertising program or a group legal services plan would mislead laypersons prospective clients to think that it was a lawyer referral service sponsored by a state agency or bar association. Nor could the lawyer allow in-person, telephonic, or real-time contacts that would violate Rule 7.3.

. . .

Explanation for the Commission's Proposal

Model Rule 7.2(b) currently prohibits a lawyer from giving anything of value for recommending the lawyer’s services.  The Rule, however, creates exceptions that permit a lawyer to pay for the “reasonable costs” of advertising and the “usual charges” of non-profit or state-qualified lawyer referral services.  In practical effect, the Rule has been interpreted to mean that a lawyer may divide client fees with non-profit or approved referral services, but may only pay set costs to advertising programs, such as the cost of a television commercial or a newspaper advertisement.

Prior to the Internet, this dichotomy between advertising and lawyer referral services was not difficult to understand.  For example, payments to television stations to run a commercial or payments to a phone book company to run a Yellow Pages advertisement were clearly permissible, whereas sharing fees with a for-profit referral service was clearly impermissible.

The Internet has blurred these lines, and it is highly likely that continued technological innovation will make the lines even less clear.  For example, new marketing methods have emerged, such as those provided by Legal Match, Total Attorneys, Groupon, and Martindale-Hubbell’s Lawyers.com that do not fit neatly into existing categories.  Although the particular models vary, lawyers often pay these companies a fee for each client lead that the company generates.  The existing version of Rule 7.2 does not clearly resolve whether these payments constitute an impermissible fee to “recommend” the lawyer’s services.[1]

These ambiguities also arise when lawyers use social networking sites to market their practices.  For example, one firm recently distributed free t-shirts containing the law firm’s name; the firm then offered a chance to win a prize to everyone who posted a photo of themselves on Facebook that showed them wearing the firm’s t-shirt.  The firm arguably gave people something “of value” (the shirt and the opportunity to win a prize) for “recommending the lawyer’s services” and thus might be viewed as running afoul of the existing version of Rule 7.2. 

To determine how to treat new forms of marketing, the Commission examined the original purpose of the restrictions contained in Model Rule 7.2(b).  One important goal was to prohibit payments to other people to develop clients in a manner that the lawyer was not permitted to employ.  For example, the Rule prohibits a lawyer to pay “runners” to engage in in-person solicitation. 

The legitimate concerns associated with the use of “runners,” however, are not apparent when lawyers use pay-per-lead services or other Internet-based marketing tools, such as those referenced above.  In particular, those services typically do not use methods that run afoul of existing rules of professional conduct.  For example, these services do not usually use in-person solicitation or employ false or misleading communications.  If they did, lawyers could be disciplined for using those services.  Accordingly, the Commission concluded that it should propose clarifying language regarding Rule 7.2’s scope. 

A.    The Commission’s Proposal

The Commission proposes to retain the general prohibition against paying others for recommending the lawyer’s services, but to clarify what that prohibition means.  In particular, the Commission proposes to add new language to Comment [5] that defines the term “recommending.” This new definition would enable lawyers to identify more clearly the circumstances under which a payment for lead generation services, such as a “pay-per-click” and “pay-per-lead” services, are permissible. At the same time, it would retain existing prohibitions on paying nonlawyers for a recommendation.

The proposed Comment language also makes clear that, even if a lead generation service does not “recommend” the lawyer in the manner described above, the lawyer must not make any payments to a lead generator if the payment would violate Rules 1.5(e) (division of fees) and 5.4 (professional independence of the lawyer).  Moreover, the proposed Comment language emphasizes that a lawyer must ensure that the lead generator’s communications to potential clients are consistent with Rule 7.1 (communications concerning a lawyer’s services).  In particular, the lawyer must ensure that the lead generator discloses that the lawyer has paid a fee in exchange for the lead.  Moreover, the lead generator should not state or imply that the lead generator has analyzed the potential client’s legal problems when determining which lawyer should receive the referral. These requirements are intended to prevent any misunderstanding as to the reason why the lead generator has identified a particular lawyer.

The new definition also would have clearer implications for other forms of Internet-based marketing methods.  For example, the “free t-shirt” promotion mentioned above would likely be permissible because the individuals wearing the t-shirts could not reasonably be understood as a “recommendation” (i.e., it is not reasonably understood as an endorsement of the law firm’s credentials, abilities, or qualities). 

 B.     Alternative Approaches Considered

The Commission considered alternative approaches to amending Rule 7.2 and paid particular attention to one that would have had more significant implications than the approach that the Commission is proposing.  In particular, the Commission considered eliminating Rule 7.2(b)’s prohibition against paying nonlawyers for recommendations.  Such a change would enable lawyers to pay for such recommendations as long as the nonlawyers’ methods are consistent with the lawyer’s own ethical obligations.  For example, a lawyer under this alternative approach would be permitted to pay a for-profit referral service for recommending the lawyer, but only if the service does not employ any methods that the lawyer could not employ (e.g., it does not use misleading communications or engage in in-person solicitations) and only if any fee paid to the service is consistent with Rule 1.5(e) (i.e., the payment is for the recommendation and not a portion of the fee that the lawyer earned) and Rule 5.4 (the recommender does not have the ability to control the way in which the lawyer represents the client).   The Commission learned that the District of Columbia has adopted a somewhat similar approach.[2]

This alternative approach would retain the historical restrictions on paying others to engage in unethical conduct (such as paying “runners” to engage in in-person solicitation), but free lawyers to use new and innovative forms of marketing.  For example, for-profit lawyer referral services would be able to recommend to potential clients the lawyers who are particularly well-suited to provide the specific services that the potential clients are seeking, including offering a description of the lawyers’ qualifications and the cost of their services relative to other lawyers who offer similar services.  Arguably, such a for-profit referral service would be able to match potential clients with appropriate lawyers more effectively and efficiently than not-for-profit models and thus make legal services more accessible and affordable.[3]

The Commission nevertheless decided to retain the restriction on paying others for a recommendation.  Concerns were raised that, by removing the restriction, for-profit entities would develop undue influence over the channeling of professional work, even if they do not have the expertise to do so.  Moreover, there was concern that such entities might wield inappropriate influence over lawyers who want to be recommended, despite the restrictions contained in Rule 5.4.  For these reasons, the Commission’s current proposal retains the current prohibition against paying for a recommendation, but clarifies what counts as a “recommendation.” 

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[1] A related question is whether such fees would be considered an impermissible form of fee sharing under Rule 5.4.  There is considerable case law and numerous ethics opinions that define a “legal fee” for purposes of Rule 5.4, and the Commission concluded that no additional guidance is necessary to address the issue.  See, e.g., State Bar of Ariz. Ethics Op. 00-10 (2000); Va. State Bar Ethics Op. 1712 (1998); ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 88-356 (1988).

[2]D.C. Rules of Prof’l Conduct 7.1(b)(2) (“A lawyer shall not give anything of value to a person (other than the lawyer’s partner or employee) for recommending the lawyer’s services through in-person contact”); D.C. Bar Ethics Op. 342 (2007).

[3] The proposal also would be consistent with the Commission’s proposed approach to outsourcing under Rule 5.3.  In particular, proposed Comment [4] to that Rule provides that, “[w]hen using such services outside the firm, a lawyer must make reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer’s professional obligations.”  The premise of that proposal is consistent with the idea that lawyers should be permitted to pay others to perform services on the lawyer’s behalf as long as the services are performed in a manner that is consistent with the lawyer’s own professional obligations. 

Ethics 20/20 Proposal to Amend Rule 1.18 (Duties to Prospective Clients)

Rule 1.18 Duties to Prospective Client 

(a) A person who discusses communicates with a lawyer about the possibility of forming a client-lawyer relationship and has a reasonable expectation that the lawyer is willing to consider forming a client-lawyer relationship with respect to a matter is a prospective client.

(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with learned information from a prospective client shall not use or reveal that information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.

. . .

COMMENT

[1] Prospective clients, like clients, may disclose information to a lawyer, place documents or other property in the lawyer’s custody, or rely on the lawyer’s advice. A lawyer’s discussions communications with a prospective client usually are limited in time and depth and leave both the prospective client and the lawyer free (and sometimes required) to proceed no further. Hence, prospective clients should receive some but not all of the protection afforded clients.

[2] Not all persons who communicate information to a lawyer are entitled to protection under this Rule. A person who communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to consider the possibility of forming a client-lawyer relationship, is not a ‘‘prospective client’’ within the meaning of paragraph (a).  Moreover, a person who communicates with a lawyer for the purpose of disqualifying the lawyer is not a “prospective client.”

[3] A person becomes a prospective client when that person communicates with a lawyer under circumstances where the person has a reasonable expectation that the lawyer is willing to consider forming a client-lawyer relationship.  The reasonableness of the person’s expectations may depend on a number of factors, including whether the lawyer encouraged or solicited inquiries about a proposed representation; whether the lawyer previously represented or declined to represent the person; whether the person, prior to communicating with the lawyer, encountered any warnings or cautionary statements that were intended to limit, condition, waive or disclaim the lawyer’s obligations; whether those warnings or cautionary statements were clear and reasonably understandable; and whether the lawyer acted or communicated in a manner that was contrary to the warnings or cautionary statements.  For example, if a lawyer’s website encourages a website visitor to submit a personal inquiry about a proposed representation and the website fails to include any cautionary language, the person submitting the information could become a prospective client.  In contrast, if a lawyer’s website does not expressly encourage or solicit inquiries about a proposed representation and merely offers general information about legal topics or information about the lawyer or the lawyer’s firm, such as the lawyer’s contact information, experience, and areas of practice, this information alone is typically insufficient to create a reasonable expectation that the lawyer is willing to consider forming a client-lawyer relationship.

. . .

The Commission's Explanation for the Proposal

Model Rule 1.18 was proposed by the ABA Commission on Evaluation of the Model Rules of Professional Conduct (Ethics 2000 Commission) and was adopted by the ABA House of Delegates in 2002.  The purpose of the Rule was to identify a lawyer’s duties to prospective clients.  

Critical to the application of Rule 1.18 is the definition of a “prospective client.”  The Commission concluded that the definition must be sufficiently flexible to address the increasing volume of electronic communications that lawyers now receive from people who seek legal services.  In a recently released Formal Ethics Opinion, the ABA Standing Committee on Ethics and Professional Responsibility identified the circumstances under which these communications might give rise to a prospective client-lawyer relationship,[1] and the Commission concluded that lawyers and the public would benefit from a codification of some elements of that Formal Opinion. 

First, the Commission concluded that paragraph (a) of Model Rule 1.18 should be revised to include a more detailed definition of a “prospective client.”  In particular, the proposed new language defines a “prospective client” as someone who has “a reasonable expectation that the lawyer is willing to consider forming a client-lawyer relationship.”  The Commission concluded that this language, which is similar to language that currently appears in Comment [2], more accurately characterizes the applicable standard and is more capable of application to electronic communications.        

The proposed change of the word “discusses” to “communicates” in paragraph (a) has a similar purpose: it is intended to make clear that a prospective client-lawyer relationship can arise even when an oral discussion between a lawyer and client has not taken place.  The word “communicates” makes this point more clearly than the word “discusses” in that “communicates” more accurately describes current methods of discourse and anticipates future methods of interaction between lawyers and potential clients.  It also more effectively alerts lawyers to the possible concerns associated with electronic communications. 

For similar reasons, the Commission proposes to replace the phrase “had discussions with a prospective client” in paragraph (b) with the phrase “learned information from a prospective client.”  The Commission is proposing conceptually similar changes in Comments [5] and [6].

Comment [3] elaborates on the new definition by identifying a number of factors that are relevant when determining whether someone has become a prospective client.  The Commission concluded that this new Comment language will help to ensure that lawyers and the public better understand the potential consequences of communicating electronically and will give lawyers more guidance on how to avoid creating unintended client-lawyer relationships. 

Finally, the Commission proposes to add a sentence at the end of Comment [2] to make clear that a person is not owed any duties under Rule 1.18 if that person contacts a lawyer for the purpose of disqualifying the lawyer from representing an opponent.  Many ethics opinions have recognized that lawyers owe no duties to those who engage in this sort of behavior, which is commonly referred to as “taint shopping.”[2]  In fact, some states have incorporated this concept into their own versions of Rule 1.18.  See, e.g., New York R. Prof. C. 1.18(e)(2).  The Commission concluded that the concept deserved expression in Comment [2] given the ease with which technology makes “taint shopping” possible.  

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[1] ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 10-457 (2010).

[2] See, e.g., Assoc. of the Bar of the City of New York, Formal Op. 2006-02; Va. State Bar Ethics Op. 1794 (2004). 

Ethics 20/20 Proposal to Amend Rule 1.6 (Confidentiality of Information)

Rule 1.6 Confidentiality of Information

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

    (1) to prevent reasonably certain death or substantial bodily harm;

    (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;

    (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;

    (4) to secure legal advice about the lawyer’s compliance with these Rules;

    (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or(6) to comply with other law or a court order.

(c)  A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client. 

COMMENT

. . .

Acting Competently to Preserve Confidentiality

[16] Paragraph (c) requires a A lawyer must to act competently to safeguard information relating to the representation of a client against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons or entities who are participating in the representation of the client or who are subject to the lawyer’s supervision or monitoring. See Rules 1.1, 5.1 and 5.3.  The unauthorized access to, or the inadvertent or unauthorized disclosure of, confidential information does not constitute a violation of paragraph (c) if the lawyer has made reasonable efforts to prevent the access or disclosure.  Factors to be considered in determining the reasonableness of the lawyer’s efforts include the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use). A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to forego security measures that would otherwise be required by this Rule.  Whether a lawyer may be required to take additional steps to safeguard a client’s information in order to comply with other law, such as state and federal laws that govern data privacy or that impose notification requirements upon the loss of, or unauthorized access to, electronic information, is beyond the scope of these Rules. 

[17] When transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. This duty, however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy. Special circumstances, however, may warrant special precautions. Factors to be considered in determining the reasonableness of the lawyer’s expectation of confidentiality include the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement. A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to the use of a means of communication that would otherwise be prohibited by this Rule.  Whether a lawyer may be required to take additional steps in order to comply with other law, such as state and federal laws that govern data privacy, is beyond the scope of these Rules.

 

The Commission's Explanation for the Proposal

Currently, Model Rule 1.6(a) states that a lawyer has a duty not to reveal a client’s confidential information, except for the circumstances described in Model Rule 1.6(b).  The Rule, however, does not indicate what ethical obligations lawyers have to prevent such a revelation.  Although this obligation is described in Comments [16] and [17], the Commission concluded that technology has made this duty sufficiently important that it should be elevated to black letter status in the form of the proposed Model Rule 1.6(c). 

The idea of explaining a lawyer’s duty to safeguard information within the black letter of the Rule is not new.  The proposed Model Rule 1.6(c) builds on a similar provision in New York, which itself has its roots in DR 4-101(D) of the old Model Code of Professional Responsibility.  DR 4-101(D) had provided as follows:

(D) A lawyer shall exercise reasonable care to prevent his employees, associates, and others whose services are utilized by him from disclosing or using confidences or secrets of a client, except that a lawyer may reveal the information allowed by DR 4-101(C) through an employee.

The Commission concluded that a similar provision should appear in Model Rule 1.6 given the various confidentiality concerns associated with electronically stored information. 

The proposal identifies three types of problems that can lead to the unintended disclosure of confidential information.  First, information can be inadvertently disclosed, such as when an email is sent to the wrong person.  Second, information can be accessed without authority, such as when a third party “hacks” into a law firm’s network or a lawyer’s email account.  Third, information can be disclosed when employees or other personnel release it without authority, such as when an employee posts confidential information on the Internet.  Rule 1.6(c) is intended to make clear that lawyers have an ethical obligation to make reasonable efforts to prevent these types of disclosures, such as by using reasonably available administrative, technical, and physical safeguards.

To be clear, paragraph (c) does not mean that a lawyer engages in professional misconduct any time a client’s confidences are subject to unauthorized access or disclosed inadvertently or without authority.  A sentence in Comment [16] makes this point explicitly.  The reality is that disclosures can occur even if lawyers take all reasonable precautions.  The Commission, however, believes that it is important to state in the black letter of Model Rule 1.6 that lawyers have a duty to take reasonable precautions, even if those precautions will not guarantee the protection of confidential information under all circumstances.

The Commission examined the possibility of offering more detailed guidance about the measures that lawyers should employ.  The Commission concluded, however, that technology is changing too rapidly to offer such guidance and that the particular measures lawyers should use will necessarily change as technology evolves and as new risks emerge and new security procedures become available.  Nevertheless, the Commission is proposing new language to Comment [16] to identify several factors that lawyers should consider when determining whether their efforts are reasonable, including the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use).  Moreover, as explained above, the Commission has recommended that the ABA create a centralized user-friendly website that contains continuously updated and detailed information about data security. 

In addition to setting out the factors that lawyers need to consider when securing their clients’ confidences, the proposed Comment language recognizes that some clients might require the lawyer to implement special security measures not required by the Rule or may give informed consent to the use of security measures that would otherwise be prohibited by the Rule.  A nearly identical observation appears in Comment [17] in the context of security measures that lawyers might have to employ when transmitting confidential information.  The Commission concluded that a similar thought should be expressed in the context of Comment [16], which pertains to the storage of such information.  

Finally, the Commission’s research revealed that there has been a dramatic growth in federal, state, and international laws and regulations relating to data privacy.  The Commission found that this body of law increasingly applies to lawyers and law firms and that lawyers need to be aware of these additional obligations.  Thus, the Commission is proposing to add a sentence to the end of Comment [16] and Comment [17] that would remind lawyers that other laws and regulations impose confidentiality-related obligations beyond those that are identified in the Model Rules of Professional Conduct.  Other Comments in the Model Rules instruct lawyers to consult law outside of the ethics rules, and the Commission concluded that a lawyer’s duty of confidentiality is another area where other legal obligations have become sufficiently important and common that lawyer should be expressly reminded to consider those obligations, both when storing confidential information (Comment [16]) and when transmitting it (Comment [17]).

Ethics 20/20 Proposal to Amend Rule 1.4 (Communication)

Rule 1.4 (Communication)

. . .

COMMENT

. . .

[4] A lawyer's regular communication with clients will minimize the occasions on which a client will need to request information concerning the representation. When a client makes a reasonable request for information, however, paragraph (a)(4) requires prompt compliance with the request, or if a prompt response is not feasible, that the lawyer, or a member of the lawyer's staff, acknowledge receipt of the request and advise the client when a response may be expected. Client telephone calls should be promptly returned or acknowledged. Lawyers should promptly respond to or acknowledge client communications.

 

The Commission's Explanation for the Proposal

Model Rule 1.4 describes a lawyer’s duty to communicate with clients, and the last sentence of Comment [4] to Model Rule 1.4 currently instructs lawyers that “[c]lient telephone calls should be promptly returned or acknowledged.”  Clients, however, now communicate with lawyers in an increasing number of ways, including by email, so a lawyer’s obligation to respond to such communications exists regardless of the medium that is used.  Accordingly, the Commission proposes to replace the last sentence of Comment [4] with the following language:  “Lawyers should promptly respond to or acknowledge client communications.”  The Commission concluded that this language more accurately describes a lawyer’s obligations in light of changes in technology and evolving methods of communication.

 

Ethics 20/20 Proposal to Amend Rule 1.0(k) (Definition of "Screened")

Rule 1.0 (Terminology)

(k) ‘‘Screened’’ denotes the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law.

COMMENT

. . .

[9] The purpose of screening is to assure the affected parties that confidential information known by the personally disqualified lawyer remains protected. The personally disqualified lawyer should acknowledge the obligation not to communicate with any of the other lawyers in the firm with respect to the matter. Similarly, other lawyers in the firm who are working on the matter should be informed that the screening is in place and that they may not communicate with the personally disqualified lawyer with respect to the matter. Additional screening measures that are appropriate for the particular matter will depend on the circumstances. To implement, reinforce and remind all affected lawyers of the presence of the screening, it may be appropriate for the firm to undertake such procedures as a written undertaking by the screened lawyer to avoid any communication with other firm personnel and any contact with any firm files or other materials information, including information in electronic form, relating to the matter, written notice and instructions to all other firm personnel forbidding any communication with the screened lawyer relating to the matter, denial of access by the screened lawyer to firm files or other materials information, including information in electronic form, relating to the matter, and periodic reminders of the screen to the screened lawyer and all other firm personnel.

The Commission's Explanation for the Proposal

Model Rule 1.0 is the Terminology Section of the Model Rules.  Model Rule 1.0(k) describes the procedures for an effective screen to avoid the imputation of a conflict of interest under Model Rules 1.10, 1.11, 1.12, and 1.18.  Comment [9] elaborates on this definition and notes that one important feature of a screen is to limit the screened lawyer’s access to any information that relates to the matter giving rise to the conflict.

Advances in technology have made client information more accessible to the whole firm, so the process of limiting access to this information should require more than placing relevant physical documents in an inaccessible location; it should require appropriate treatment of electronic information as well.  Although this requirement is arguably encompassed within the existing version of Rule 1.0(k) and Comment [9], the Commission concluded and heard that greater clarity and specificity is needed.  To that end, the Commission is proposing that Comment [9] explicitly note that, when a screen is put in place, it should apply to information that is in electronic, as well as tangible, form. 

Ethics 20/20 Proposal to Amend Rule 1.1 (Competence)

Rule 1.1 Competence

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

COMMENT

. . .

Maintaining Competence

[6] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

 

The Commission's Explanation for the Proposal

Model Rule 1.1 requires a lawyer to provide competent representation, and Comment [6] specifies that, to remain competent, lawyers need to “keep abreast of changes in the law and its practice.”  The Commission concluded that, in order to keep abreast of changes in law practice, lawyers necessarily need to understand basic features of technology and that this aspect of competence should be expressed in the Comment.  For example, a lawyer would have difficulty providing competent legal services in today’s environment without knowing how to use email or to create or edit an electronic document. 

Comment [6] already encompasses an obligation to remain aware of changes in technology that affect law practice, but the Commission concluded that the addition of the phrase “including the benefits and risks associated with technology” would offer greater clarity regarding a lawyer’s obligations in this area and emphasize the importance of technology to modern law practice.  The proposed amendment does not impose any new obligations on lawyers.  Rather, the amendment is intended to emphasize that a lawyer should remain aware of technology, including the benefits and risks associated with it, as part of a lawyer’s general ethical duty to remain competent.  

Seattle police seek SCOTUS review; police department wants to block any appeal

Seattle Times.  Here's a follow up on that issue I mentioned earlier, involving Seattle police officers who are appealing in a case stemming from the tasering of a pregnant woman. The police department doesn't favor an appeal and had tried to stop the lawyer for the officers. (h/t: How Appealing)

"Should Global Warming Activists Lie to Defend Their Cause?"

Scientific American takes a look at an issue that arises in many contexts, including criminal defense practice. I keep a folder of clippings, articles, etc., on this topic, and some of the recent discussions have arisen in the context of environmental activism. It's not legal ethics per se, but perhaps you'll find it interesting. (h/t: Instapundit)