The Model Rules of Professional Conduct and Electronic Tools: How Ethical Rules Must Adapt to Address Current and Forthcoming Technologies By Melissa Freeman

ABA Must Address: The Importance of Existing and Forthcoming Innovative Technologies The Ethics 2000 Commission’s Changes to the Rules Do Not Contemplate Technology The Rules Must Change to Encourage Technological Advancements

The Importance of Technology: Current and Predicted Current Technology Web-based advice Web-based advice Web-based client intake Web-based client intake Electronic conflict checks Electronic conflict checks Security measures Security measures Electronic client contact Electronic client contact Instant & Text Messaging Electronic Filing Electronic Filing

The Importance of Technology: Current and Predicted Future Technologies Predicted by Legal Technologists Advanced conflicts checks software utilizing artificial intelligence Advanced conflicts checks software utilizing artificial intelligence Advanced risk assessment software utilizing artificial intelligence Advanced risk assessment software utilizing artificial intelligence Web-based case tracking Web-based case tracking Computer customized advice Computer customized advice Access to knowledge & additional legal information Computer-based confidentiality services Computer-based confidentiality services

Current State of the Rules Ethics 2000 Commission Did Not Contemplate Technology Innovations Unauthorized practice of law, R. 5.5 Unauthorized practice of law, R. 5.5 Duties to prospective clients, R. 1.8 Duties to prospective clients, R. 1.8 Scope of representation, R. 1.2 Scope of representation, R. 1.2 Competency, R. 1.1 Competency, R. 1.1 Conflicts of interest, R. 1.7 Conflicts of interest, R. 1.7 Confidentiality, R. 1.6 Confidentiality, R. 1.6 Informed consent, R. 1.0 Informed consent, R. 1.0

4 Issues Raised by the Rules Whether electronic communications constitute a “writing” as required for informed consent Whether on-line practice constitutes the unauthorized practice of law When attorney-client relationships are formed over the internet What electronic communications are privileged

How The Rules Must Change Electronic communications should constitute a writing as required for informed consent is recognized as an electronic record, but instant and text messaging are not addressed is recognized as an electronic record, but instant and text messaging are not addressed Instant messages are typically archived by service providers Text messages are sometimes saved on servers, but only temporarily

How The Rules Must Change Electronic communications should constitute a writing as required for informed consent is recognized as being “signed” by the sender. The same should be considered for instant and text messaging. is recognized as being “signed” by the sender. The same should be considered for instant and text messaging. , instant messaging and text messaging are all captured, and constitute an “electronic record of communication” , instant messaging and text messaging are all captured, and constitute an “electronic record of communication”

How The Rules Must Change Rules Governing the Unauthorized Practice of Law Should Clearly Address Practice in Cyberspace Must set forth clear guidelines Must set forth clear guidelines General advice on-line OK? Specific advice on-line OK if attorney uses a disclaimer? ABA should address within R. 5.5 or its accompanying comment ABA should address within R. 5.5 or its accompanying comment

How The Rules Must Change The solution is not a cyber jurisdiction: Legal technologists presume service providers and on-line users will regulate but ABA is in the best position to regulate attorneys because on-line practice implicates several other Rules of Professional Conduct Legal technologists presume service providers and on-line users will regulate but ABA is in the best position to regulate attorneys because on-line practice implicates several other Rules of Professional Conduct Unauthorized Practice of Law, R. 5.5 Restriction on the Right to Practice, R. 5.6 Communication Concerning a Lawyer’s Services, R. 7.1 Advertising R. 7.2

How The Rules Must Change Should Clearly Define When an Attorney- Client Relationship is Formed Over the Internet Disclaimer enough? Disclaimer enough? Separate communication manifesting a lack of consent to represent the client required? Separate communication manifesting a lack of consent to represent the client required?

How The Rules Must Change Electronic Communications Should Be Privileged U.S. v. Segal, Northern Dist. Of Illinois – electronic communications viewed in camera to determine whether they were intended to be privileged. The court considered the content of the message instead of the form of the message. U.S. v. Segal, Northern Dist. Of Illinois – electronic communications viewed in camera to determine whether they were intended to be privileged. The court considered the content of the message instead of the form of the message. Attorneys will have the burden to implement security measures for all electronic communications Attorneys will have the burden to implement security measures for all electronic communications

How The Rules Must Change ABA should revise the rules to consider current and forthcoming technologies used in the practice of law. Result: Greater certainty for attorneys who use technology in their practice of law Result: Greater certainty for attorneys who use technology in their practice of law