CHAPTER 15 ETHICS ISSUES FOR MINERAL TITLE LAWYERS
| Jurisdiction | United States |
ETHICS ISSUES FOR MINERAL TITLE LAWYERS
Clark Hill PLC
Pittsburgh, PA
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DAVID G. RIES is of counsel in the Pittsburgh, PA office of Clark Hill PLC, where he practices in the areas of environmental, technology, and data protection law and litigation. For over 20 years, he has increasingly focused on cybersecurity, privacy, and information governance. He is a Trustee and Past President of the Energy & Mineral Law Foundation and served on a hearing committee for the Disciplinary Board of the Supreme Court of Pennsylvania. He has used computers in his practice since the early 1980s and since then has strongly encouraged attorneys to embrace technology - in appropriate and secure ways. Dave frequently speaks and writes nationally on legal ethics, technology, and technology law topics, including presentations for the Energy and Mineral Law Foundation and the Rocky Mountain Mineral Law Foundation. He is a coauthor of Locked Down: Practical Information Security for Lawyers, Second Ed. (ABA 2016) and Encryption Made Simple for Lawyers (ABA 2015) and the editor of eDiscovery, Fourth Edition (PBI Press 2017).
Contents
I. Competence in Technology
A. ABA Commission on Ethics 20/20
B. The Ethics 20/20 Amendments: Competence and Confidentiality
C. Existing, Not New Obligations
D. Competence in Technology - What Does It Require?
E. Additional Information
II. Safeguarding Client Data: Attorneys' Legal and Ethical Duties
A. Duty to Safeguard
B. Complying with the Duties
C. Conclusion
D. Additional Information
III. Multijurisdictional Practice
A. Introduction
B. Overview of Multijurisdictional Practice Issues
C. Practice in Federal Courts and Before Federal Agencies
D. ABA Commission on Multijurisdictional Practice
E. MJP Amendments to the ABA Model Rules
F. Implementation by the States
G. Challenges to Bar Admission Requirements
H. The Colorado "Driver's License" Approach
I. The ABA Commission on Ethics 20/20
J. Continuing Multijurisdictional Issues
K. Conclusion
L. Additional Information
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This paper explores three current issues in legal ethics that are important for mineral title attorneys to understand and address. They include competence in technology, safeguarding client data, and multijurisdictional practice.
I. Competence in Technology
As the use of technology in the practice of law continues to grow at a rapid pace, attorney competence in technology and protection of electronic files and client information is more important than ever before. At the American Bar Association Annual Meeting in August 2012, the ABA Model Rules of Professional Conduct1 ("Model Rules") were amended to add requirements of competence in technology and reasonable measures to safeguard information relating to clients. Reactions to these amends have varied, ranging from viewing the amendments as significant changes, adding potentially onerous new duties, to seeing them as simply making more explicit what was already required. What do the amended rules actually require? How can attorneys comply with them? This section provides an overview of the duty of competence and what it requires. The next section explores the duty to safeguard information relating to clients.
This paper addresses the Model Rules. It is important to consult and comply the ethics rules, court cases and ethics opinions in the relevant jurisdiction(s).
A. ABA Commission on Ethics 20/20
The ABA Commission on Ethics was appointed by the ABA President in 2009 to perform a thorough review of the Model Rules and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments. The Commission submitted its proposals for consideration at the ABA 2012 Annual Meeting, including Technology and Confidentiality, Technology and Client Development, Outsourcing, Practice Pending Admission, Admission by Motion, and Detection of Conflicts of Interest. These proposals were adopted and the Model Rules were amended in accordance with them.
Additional proposals were approved at the ABA 2013 Midyear Meeting, including Unauthorized Practice of Law; Multijurisdictional Practice of Law, Registration of In-House Counsel, Pro Hac Vice Admission, and Choice of Rule for ethics and discipline. The Commission referred fee division and nonlawyer ownership of law firms to the ABA Standing Committee on Ethics and Professional Responsibility for further consideration. The Commission's Introductions and Overviews and Reports and Resolutions, as well as detailed background information, are available on the Commission's website.2
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B. The Ethics 20/20 Amendments: Competence and Confidentiality
The Commission found that technology has transformed how attorneys communicate with clients and how they process and store information relating to clients. This has created new issues about lawyers' obligations, including the duty to protect confidential information. The amendment to the Comment to Model Rule 1.1 requires attorneys to have and maintenance competence in their use of technology. The amendments to Model Rules 1.1 and 1.6 together require attorneys to take competent and reasonable measures to protect client information. These rules and comments, as amended, provide (additions underlined):
Model Rule 1.1 - Competence
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Comment
Maintaining Competence
[8] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.
Model Rule 1.6 - Confidentiality of Information:
(a) A lawyer shall not reveal information relating to the representation of a client unless...
(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.
Model Rule 5.3 Responsibilities Regarding Nonlawyer Assistance
The rule was amended to expand its scope. "Assistants" was expanded to "Assistance," extending its coverage to all levels of staff and outsourced services, ranging from copying services, to cloud technology service providers, to outsourced legal services. This requires attorneys to employ reasonable safeguards, like due diligence, contractual requirements, supervision, and monitoring, to insure that nonlawyers, both inside and outside a law firm, provide services in compliance with an attorney's duty of confidentiality.
C. Existing, Not New Obligations
The Ethics 20/20 Commission noted that the requirements for competence in technology and competent and reasonable measures to safeguard confidentiality were not new:
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Rule 1.1 Comment [8]: "The proposed amendment, which appears in a Comment, does not impose any new obligations on lawyers. Rather, the amendment is intended to serve as a reminder to lawyers that they should remain aware of technology, including the benefits and risks associated with it, as part of a lawyer's general ethical duty to remain competent."
ABA Commission on Ethics 20/20, Report to Resolution 105A Revised, (2012). As of March 2019, 36 states have adopted this amendment or a variation of it.
Rule 1.6 (c): "This duty is already described in several existing Comments, but the Commission concluded that, in light of the pervasive use of technology to store and transmit confidential client information, this existing obligation should be stated explicitly in the black letter of Model Rule 1.6."
ABA Commission on Ethics 20/20, Report to Resolution 105A Revised, Introduction (2012).
D. Competence in Technology - What Does It Require?
To comply with the duty of competence in technology, attorneys must: know relevant technology, learn it, or get qualified assistance with it.
1. Critical Competencies
Andrew Perlman, the Dean of Suffolk University Law School and the Reporter of the ABA Ethics 20/20 Commission," has summarized the duty of competence in technology as follows:3
Just twenty years ago, lawyers were not expected to know how to protect confidential information from cybersecurity threats, use the Internet for marketing and investigations, employ cloud-based services to manage a practice and interact with clients, implement automated document assembly and expert systems to reduce costs, or engage in electronic discovery. Today, these skills are increasingly essential, and many lawyers want to know whether they are adapting quickly enough to satisfy their ethical duty of competence.
Dean Perlman's examples of critical competencies in technology include:
1. Cybersecurity
2. Internet Marketing and Investigations
3. Employing Cloud-Based Services (in the practice of law)
4. Leveraging New and Established Legal Technology / Innovation
Examples of this 4 th category include: "automated document assembly, expert systems (e.g., automated processes that generate legal conclusions after users answer a series of branching questions), knowledge management (e.g., tools that enable lawyers to find
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information efficiently within a lawyer's own firm, such as by locating a pre-existing document addressing a legal issue or identifying a lawyer who is already expert in the subject), legal analytics (e.g., using "big data" to help forecast the outcome of cases and determine their settlement value), virtual legal services, and cloud-based law practice management."
This article provides a good overview of the general requirements.
2. E-Discovery
E-Discovery is an area of practice in which technology has been...
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