ABA Commission on

Ethics 20/20Michael Traynor, Commission Co-Chair

Andrew Perlman, Chief Reporter

Judith Miller, Commissioner & Chair of Outreach Committee

www.americanbar.org/Ethics2020

Jamie S. Gorelick (Co-Chair), WilmerHale (Washington, D.C.)Michael Traynor (Co-Chair), President Emeritus, ALI (California)

Stephen Gillers, New York University Law School

Jeffrey B. Golden, London School of Economics

William C. Hubbard, Nelson Mullins Riley & Scarborough (S. Carolina)

George W. Jones, Sidley Austin (Washington, D.C.)

Justice Elizabeth B. Lacy, Virginia Supreme Court

Carolyn B. Lamm, White & Case (Washington, D.C.)

Judith A. Miller, Fmr. Chair, Section of Litigation (Washington, D.C.)

Judge Kathryn A. Oberly, District of Columbia Court of Appeals

Roberta Cooper Ramo, Modrall & Sperling (New Mexico)

Herman J. Russomanno, Russomanno & Borello (Florida)

Theodore Schneyer, University of Arizona Law School

Carole Silver, Indiana University Maurer School of Law

Frederic S. Ury, Ury & Moskow (Connecticut)

Chief Justice Gerald W. VandeWalle, North Dakota Supreme Court

Commissioners

ABA Commission on Ethics 20/20: Studying a “New Normal”

Created in 2009 to study how rules and policies Created in 2009 to study how rules and policies concerning lawyer conduct need to be revised in concerning lawyer conduct need to be revised in light of:light of:

Changes in TechnologyChanges in Technology

GlobalizationGlobalization

Ethics 20/20 Commission Working Groups

Technology

Outsourcing

Conflicts of Interest, Uniformity & Choice of Law

Inbound Foreign Lawyers

Alternative Litigation Financing

Entity Regulation/Alternative Business Structures

Rankings

The Past: Protecting Client Information

Technology Working Group (Confidentiality)

The Reality: Protecting Client Information

Technology Working Group (Confidentiality)

Question

Do lawyers have different ethical obligations when storing confidential information on these new forms of technology?

Commission Proposals Under Consideration

• Amend several Model Rules and their Comments to offer more clarity regarding a lawyer’s obligations when using technology

•Create a user-friendly ABA website with answers to common questions

The Past

Technology (Client Development)

Blogs

Pop-up Ads

Websites

The Present

Technology (Client Development)

Question

Do lawyers have different ethical obligations when using new technology for client development?

Commission Proposals Under Consideration

• Existing rules and principles apply well to new technology

•Clarifications needed in certain areas, such as the definition of a “solicitation”

Outsourcing: Abroad

Outsourcing

Outsourcing: Domestic (More Common)

Outsourcing

Question

What ethical obligations do lawyers have when using lawyers and nonlawyers outside the firm?

Commission Proposals Under Consideration

• Identification of factors to consider when retaining lawyers outside the firm

•Identification of factors to consider when using nonlawyers outside the firm (e.g., investigators, electronic discovery vendors)

Lawyer Mobility in an Increasingly Borderless World

Uniformity Working Group (Lawyer Mobility)

Questions

How much mobility is necessary to meet client needs while ensuring appropriate client protections?

Do the existing rules offer sufficiently clear guidance to resolve inconsistencies among jurisdictions?

Commission Proposals Under Consideration

• Model Rule amendments to clarify how to resolve inconsistencies among jurisdictions’ rules

•Permitting more lawyer mobility while ensuring adequate protections for clients and the public

Foreign Lawyer Fly-In/Fly-Out (FIFO)

Inbound Foreign Lawyers

Question

How should the profession regulate the practice of foreign lawyers who need to visit the United States to assist their clients?

Commission Proposals Under Consideration

• Amendments to several Model Rules that will more clearly authorize, but place appropriate limitations on, the practice of foreign lawyers in the United States

Alternative Sources of Litigation Financing for Lawyers and Clients

Alternative Litigation Financing

Questions

What is alternative litigation financing?

What are a lawyer’s ethical obligations when the lawyer (or the client) wants to use it?

Commission Proposals Under Consideration

• Development of a white paper that describes how existing principles and values apply to these financing arrangements.

Question

Can alternative law firm practice structures enable greater innovation and more responsiveness to client needs in a manner that is consistent with the profession’s core values?

Alternative Law Practice Structures: The Commission’s Conclusions

• No publicly traded law firms

• No outside passive equity investment in law firms

• No multidisciplinary practice

Law Firm Rankings and Rating

Resolved, that the American Bar Association examine any efforts to publish national, state, territorial, and local rankings of law firms and law schools.

Law Firm Rankings and Ratings

Rating the Rankings?

Commission Findings

• No changes to the Model Rules are necessary

• Statistical analysis of hundreds of rankings would be prohibitively expensive

•Recommendation that the Standing Committee on Ethics and Professional Responsibility produce an opinion examining confidentiality issues as well as concerns about misleading communications

Commission Outreach to Date

• Public hearings– Dozens of witnesses at public hearings held throughout

the country– Hundreds of comments received on the Commission’s

initial proposals and papers

• Presentations to state, local, specialty, and international bar associations 

• Meetings with multiple ABA entities

• CLE, podcasts, conferences, and webinars relating to the Commission’s work

• Presentations to the Conference of Chief Justices and the National Organization of Bar Counsel

ABA Commission on

Ethics 20/20Michael Traynor, Commission Co-Chair

Andrew Perlman, Chief Reporter

Judith Miller, Commissioner & Chair of Outreach Committee

www.americanbar.org/Ethics2020