Considering the future of legal ethics

Erek L. Barron//January 3, 2012

Considering the future of legal ethics

By Erek L. Barron

//January 3, 2012

The American Bar Association, spurred by globalization and technology, has been holding hearings on potential changes to the legal ethics rules that could affect the practice of law far into the next century.

Naturally, any changes to the ethics and professionalism rules will have more of an impact on younger attorneys. It is important, then, that we weigh in before we’re saddled with vague or Luddite-inspired rules that may be interpreted by a judiciary with the “technological heebie-jeebies.”

Historically, the ABA and Maryland have had an important role in the development of legal ethics. Today’s rules date back to 1836 and Maryland law school Professor David Hoffman’s “A Course of Legal Study 2nd ed.” This book paved the way for state bar associations that promulgated ethics rules for lawyers with enforcement mechanisms.

Alabama’s 1887 “Code of Ethics” served as a model for other states, including Maryland and the ABA. In 1908 the ABA adopted an aspirational “Canons of Professional Ethics” that was replaced by the “Model Code of Professional Responsibility” in 1970. Later, in 1983, the “Code” was replaced by the ABA’s “Model Rules of Professional Conduct” (MRPC), modeled today by Maryland and many other states.

In Maryland, the Court of Appeals’ Standing Committee on Rules of Practice and Procedure now considers and recommends changes to the state’s rules and gives considerable weight to ABA policy, often adopting them verbatim.

The ABA Commission on Ethics 20/20 was created to “perform a thorough review of the MRPC and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments.”

Among the issues being addressed by the commission are outsourcing (e.g., use of contract attorneys), lawyers’ use of Internet-based client development tools (e.g., Facebook and Twitter), and client confidentiality (e.g., usage of cloud computing) and law firm ownership by other service professionals.

The commission’s process is culminating in a number of policy proposals in August. Anything passed through the ABA’s House of Delegates will surely find its way to Annapolis for strong consideration. Therefore, the time for comment is now.

The commission is accepting comments on these proposals and is holding a public hearing Feb. 2 at the ABA’s midyear meeting.  To learn more about the commission’s work, take a look at the Ethics 20/20 site and the ABA Young Lawyers Division’ ethics and professionalism site.

What do you think about these proposals?


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