California Bar Journal
CBJ - September 2012 #06.
ABA Model Rules reflect technology, globalization
The California LawyerSeptember 2012ABA Model Rules reflect technology, globalizationBy Diane Karpman On Aug. 6, 2012, the House of Delegates of the American Bar Association modified the ABA's Model Rules of Professional Conduct. It should be noted that the ABA's rules are not completely enacted as written in any "model state," but they are considered highly influential guidance when states update their own idiosyncratic Rules of Professional Conduct.
In California, the ABA Model Rules of Professional Conduct may be considered as a collateral source, particularly regarding issues for which there is no direct authority, as long as there is no conflict with California public policy. State Compensation Insurance Fund v. WPS Inc. (1999) 70 Cal. App. 4th 644, 656.
Unfortunately, in California, changes to the Rules of Professional Conduct seem to be languishing in some sort of bureaucratic limbo, despite the fact that the ABA has modified its rules two or three times to reflect the tremendous changes brought on by technology and globalization in the practice of law. For instance, earlier this month, the ABA House of Delegates approved rule changes involving topics such as outsourcing, confidentiality when using technology, using technology to market legal services and reducing the amount of time a lawyer must be practicing for admission by motion in a new jurisdiction.
Let's consider some of the more interesting proposals from the ABA's three-year-old Ethics 20/20 Commission, and their impact on our practices. Computers have revolutionized just about every aspect of life, and the impact on the legal profession has been extraordinary.
"Technology affects nearly every aspect of legal work, including how we store confidential information, communicate with clients, conduct discovery, engage in research, and market legal services," the 20/20 Commission wrote. In an ABA survey, 80 percent of respondents said they start their legal research by going to online sources; and fewer than half use print materials regularly. That is a remarkable change. "Legal research is now regularly and often more efficiently conducted online," the ABA acknowledges in its Legal Technology Survey report.
Inherent in our duty of competency is the...