Risk Update

Ethics Updates — Commentary on Change, Survey on Concerns, Invite to Opine

Lucian Pera published in the South Carolina Law Review: “Ethics, Lawyering, and Regulation in a Time of Great Change: Field Notes from the (R)evolution” —

  • “Observing these changes at close range in representing clients and working on ethics issues as a bar volunteer has led me to understand that we live in the midst of the greatest period of change in the business and practice and regulation of law in more than a century.”
  • “Much more important has been the way technology and the forces of regionalization, nationalization, and globalization have changed the lives and work of clients. Lawyers exist to serve clients, and changes in their lives and businesses drive changes in ours.”
  • “By far, the most important concern for lawyers in this mixed environment is what law applies to their conduct. This includes lawyers located or licensed in jurisdictions with new or different rules. But it also includes clients, whose expectations—and, to the extent consistent with good regulatory policy— consent should be honored. The rules on choice of law in this context can and should be clarified and made as uniform as possible.”
  • “To be clear, the questions implicated by the choice of law conversation include not only nonlawyer ownership and fee-sharing but also more mundane (but important) issues like conflict of interest rules, rules governing fee agreements, and where trust accounts for client and third-party funds must be established.”
  • “While some potential choice of law issues concerning lawyer conduct implicate concerns beyond the interests of one consenting client, the regulatory interests concerning many choice of law issues primarily concern the interests of one client who is in a position to consent. In those situations, the consent of the client should be honored.”
  • “Indeed, even this year, the ABA has taken a significant positive step with the issuance of a new Formal Ethics Opinion that takes a fresh look at the application of the ABA’s widely-adopted Model Rule on choice of law.”
  • “The Opinion also opens the way to greater client autonomy in agreeing to engagement terms by which the attorney-client relationship may be governed by ethics rules of the lawyer’s home jurisdiction, potentially including jurisdictions where regulatory reforms have been adopted that might be at odds with rules in other jurisdictions. These are rational, forward-looking applications of accepted choice of law principles.”

Bloomberg survey: “ANALYSIS: Lawyers Worry Most About the Profession’s Reputation” —

  • “Lawyers have undergone some soul-searching in the wake of election fraud cases and the Jan. 6 raid on the US Capitol. So it stands to reason that they chose ‘maintaining the integrity of the profession’ as the legal ethics category most in need of revision, according to a recent Bloomberg Law survey.”
  • “In Bloomberg Law’s second 2023 State of Practice survey, conducted in June and July, attorneys who said they believe the ABA’s model rule categories need revising overwhelmingly selected ‘maintaining integrity of the profession’ as the leading target for change.”
  • “But although the survey results show a clear direction from lawyers on what changes they’d like to see, another interesting survey statistic shows some ambivalence about whether lawyers really want change at all.”
  • “Of the 447 lawyers who answered a question about whether the ABA’s model rules should be revised in the first place, a plurality (43%) selected ‘not sure/prefer not to answer.’ Only 38% said ‘yes.'”

Jessica Bednarz with Institute for the Advancement of the American Legal System (IAALS), notes:

  • “The ABA Standing Committee on Delivery of Legal Services is seeking your feedback! They’d like you to share your opinions on any (or all) of these topics: AI, ownership of law firms by people who aren’t lawyers, and training and certifying people who aren’t lawyers to advocate for parties in lower courts. It’s a quick and easy survey.”
  • Survey link: https://americanbar.qualtrics.com/jfe/form/SV_8cAoqqbzrTUdNxc