American Bar Association Ethics 20/20 Commission Presentation to YLD Council Las Vegas, May 12, 2011 Professor Paul D. Paton, Reporter

2 ABA Commission on Ethics 20/20 Created in 2009 to study how rules and policies concerning lawyer conduct need to be revised in light of: Changes in Technology Changes in Technology Globalization Globalization

3 Ethics 20/20 Commission Working Groups Conflicts of Law, Uniformity & Choice of Law Entity Regulation/Alternative Business Structures Outsourcing Technology Third Party Litigation Financing Inbound Foreign Lawyers

4 An Invitation to Take Part: Responses Sought Commission Initial Proposals (July 15) Outsourcing Technology – Confidentiality Inbound Foreign Lawyers

5 Outsourcing Determine a lawyers ethical obligations when retaining non-firm lawyer to assist on a clients matters Determine a lawyers ethical obligations when using non-lawyer assistance outside the firm, domestically or internationally [e.g. retention of an investigative service; hiring a company to conduct patent searches or document review; using an Internet-based service to store client information (cloud computing)]

6 Technology Working Group (Confidentiality Issues) Determine ethical obligations to protect confidential client information stored on portable devices, such as laptops, smart phones and tablets Determine ethical obligations to protect confidential client information stored on or transmitted through third party services, such as cloud computing providers

7 Inbound Foreign Lawyers Given the increasingly global legal services market, should the ABA propose expanding current limited practice authorization for foreign lawyers by: Amending ABA Model Rule 5.5(d) to include foreign in-house counsel? Including foreign lawyers within the scope of the ABA Model Rule for Registration of In-House Counsel? Including foreign lawyers within the scope of the ABA Model Rule on Pro Hac Vice Admission? Is it best to merge the provisions of the ABA Model Rule for Temporary Practice by Foreign Lawyers into Rule 5.5 of the ABA Model Rules of Professional Conduct?

8 An Invitation to Take Part: Responses Sought Issues Papers (June 1) Alternative Business Structures Multijurisdictional Practice

9 Entity Regulation/Alternative Business Structures Issues Paper presents five alternatives, two of which the Commission eliminated in February 2011: passive nonlawyer investment in law firms public trading of shares in law firms Considering whether to recommend that lawyers be permitted to partner with nonlawyers under certain limited circumstances: Washington, D.C. model (nonlawyers must be an active part of the practice, sole purpose of which is delivery of legal services) Legal Disciplinary Practices model of England and Wales (caps on percentage of nonlawyer partners fit-to-own test)

10 Entity Regulation/Alternative Business Structures Key Questions: Are there client services that U.S. lawyers and law firms should be permitted to offer, but that they currently are not permitted to offer due to restrictions contained in ABA Model Rule of Professional Conduct 5.4? The District of Columbias version of 5.4 permits a lawyer to practice law in a partnership or other form of organization in which nonlawyers are actively involved in the practice (ie., are not passive investors) and hold a financial interest or have managerial authority. Should this model be adopted by the ABA? Why or why not?

11 Conflicts of Interest, Uniformity & Choice of Law How to resolve ethics issues that implicate multiple jurisdictions when the ethics rules in those jurisdictions conflict. Determine whether lawyers should be able to obtain a license to practice in another jurisdiction more easily than the rules currently allow (Admission by Motion) Whether to liberalize multijurisdictional practice

12 Technology Working Group (Marketing Issues) Determine ethical obligations when using Internet- based marketing tools such as websites, blogs, LinkedIn, Facebook or Twitter Can a lawyer pay non-lawyers for Internet-based client leads? Examples include pay-per-click or pay-per-lead advertising.

13 Third Party Litigation Financing Assess ethical implications of alternative litigation financing, including effects on: Confidentiality Professional independence of the lawyer Conflicts of Interest Fee-related issues

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