Pennsylvania’s New, Technology-related, Ethics Rule Changes for Lawyers
Fifteen pages of changes to the Rules of Professional Conduct (Rules) went into effect in November 2013. The changes primarily reflect the increased roles of technologies in law practice—both as important lawyering tools and as material to legal matters. Put simply, the Rule changes make express that every attorney must be aware of the “benefits and risks” of technologies to remain competent in law practice.
The changes should not come as a surprise. First, technology competence has always been an implied requirement for legal competence—as recent advisory ethics opinions confirm. Second, the larger business community has dealt with similar issues for years so the current changes merely bring the legal community into line. Third, the legal community faces specific technology threats because cybercriminals see the legal community as “low hanging fruit.” Thus, lawyers should view the changes as an asset to the profession.
Because they are new, a brief overview of some of the changes might raise awareness. But, be aware that as with many ethics issues, clear guidelines might elude and complex questions remain.
Minor Ethics Rule Changes
Minor, but important, changes affect Sections 7.1 to 7.7—dealing with lawyer advertising (and all attorneys should re-read the entire lawyer advertising section as even the former Rules seem to surprise some lawyers). The changes to the seven-series include several updated comments which plainly emphasize that online and Internet resources count as lawyer advertising. Rule 7.3 was also renamed from Direct Contact with Prospective Clients to Solicitation of Clients—emphasizing the changing nature of communications from in-person to electronically-oriented.
Renamed Rule 7.3, Solicitation of Clients
Pay particular attention to the revised comments to Rule 7.3 which deals with direct solicitation of clients. New Comment 1 defines direct solicitation as a “targeted communication initiated by the lawyer that is directed to a specific person” that may be reasonably understood as an offer of legal services.
Also see re-numbered Comment 3 which now appears to qualify Comment 2 regarding non-real-time communications. New Comment 3 permits general emails and other non-real-time electronic communications as long as they do not violate any other Rules.
The seven-series advertising rules are also influenced by a subtly revised Comment 2 in Rule 1.18 (prospective clients) which may affect lawyer websites. A website’s call-to-action may raise Rule 1.18 prospective-client status. (Also throughout the seven-series, “prospective client” was replaced by the more general term “person.”)
Rule 4.4 Respect for Rights of Third Persons
Another minor change involves Rule 4.4 (Respect for Rights of Third Parties and Disclosures). The Rule 4.4 changes formally incorporate guidance from prior advisory ethics opinions on inadvertent disclosure of metadata and about inadvertantly misdirected documents—basically, the receiving party must notify the sender. But the changes to Rule 4.4 apparently give a safe-harbor from more serious ethics charges only in cases of inadvertent disclosures. Since “inadvertent” is not defined by the Rules, and considering the renewed emphasis on technology competence, issues might arise regarding disclosures arising from “technology-mistakes.” That is, a lawyer inadvertently disclosing information might dodge Rule 4.4 but run afoul the other technology-revised Rules.
Major Ethics Rule Changes
The more direct and more profound technology-related changes arise in
- Rule 1.1 (lawyer competence),
- new Rule 1.6(d) (revising confidentiality duties), and
- Rule 5.3 (supervision of non-lawyers).
The changes to these Rules pose a wake-up-call to the profession.
Rule 1.1 Lawyer Competence
Rule 1.1 defines lawyer competence. Comment 8 now states that a lawyer should be familiar with “the benefits and risks associated with relevant technology” as a condition of lawyer competence. The implication appears to be that the lawyer must be “familiar” with technologies both for the lawyer’s internal operations and with how technology may affect a client’s legal situation.
Some lawyers might point to the “should” language in the revised Comment. But, lawyers not complying will potentially run violate other Rules. Thus, “should” essentially means “must” when read in the context of all the revisions.
Rule 1.6 Confidentiality
Rule 1.6 (confidentiality) includes both a new section 1.6(d) and notable updates to the comments. Specifically, new Rule 1.6(d) states, “[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” (emphasis added). Thus, lawyers must use reasonable efforts to assure confidentiality when dealing with technologies (implying working-knowledge of information security and confidentiality).
Notably, the Rules define “reasonable” as an objective standard. Rule 1.0(h) somewhat circularly defines “reasonable” as “conduct of a reasonably prudent and competent lawyer.” Thus, the Rules do not appear to use an “average attorney” standard but rather the standard of a “prudent and competent” attorney. But, competent now includes Rule 1.1 “benefits and risks associated with technology” knowledge. Thus, the focus on objective-efforts implies using best practices—practices that might be alien to some lawyers but are standard practice in other industries.
New Comments 25 and 26 to Rule 1.6(d) attempt to provide some guidance regarding confidentiality and technologies. The comments suggest that lawyers must evaluate “the sensitivity of the information, likelihood of disclosure…, … cost of additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients….” While apparently meant to be helpful, the vagueness of the comments leaves attorneys with little concrete guidance. (Guidelines exist but are not in standard practice in the legal profession.) Also, the apparent lack of concrete guidelines within the profession might risk leaving the definitions to savvy clients or to legislators (similar to the new HIPAA rules).
Rule 5.3 Nonlawyer Supervision
Finally, major changes apply to the Rule 5.3 Comments (nonlawyer supervision). Re-numbered Comment 1 imposes a blunt supervisory duty on lawyers for non-lawyer assistants working for lawyers. Lawyers must now “ensure that the firm has in effect measures giving reasonable assurance that nonlawyers in the firm and nonlawyers outside the firm who work on firm matters act in a way compatible with the professional obligations of the lawyer.” (emphasis added) The emphasized text reflects, for some, the surprising changes. When read in context of the other recent changes, Rule 5.3 now requires nonlawyers working for firms to act in a manner fully compatible with the supervising lawyer’s professional obligations—apparently including technology competence, adherence to confidentiality, and compliance with advertising and marketing rules. Thus, lawyers will need to be extremely careful when outsourcing tasks to nonlawyers.
The recent Rule and Comment changes plainly require lawyers to update their technology skills to maintain legal competence as well as to meet the needs of today’s clients. Lawyers need to be especially careful with confidentiality issues arising from technology use—including confidentiality issues arising from nonlawyer actions during outsourcing.
Unfortunately, concrete and objective standards remain elusive within the profession. Understand, guidelines exist; the legal profession has just not adopted or adapted them. Considering that lawyers might be specific targets of cybercrime according to the FBI, the profession should view defining or adopting objective standards, from within the profession, as a priority.
While not easy, prudent lawyers are already taking the steps necessary to address the Rule requirements and to reasonably assure the confidentiality, integrity, and accessibility of data associated with legal representation. All lawyers, according to the Rule changes, will now need to do the same.
NOTE: The above addresses Rule changes reasonably related to technology issues. But, the recent rule changes also affect other areas of the Rules including sale of a law practice, conflicts of interest, and communicating with clients.
Submitted for Publication: 14 February 2014
Please cite as: Shannon Brown, Pennsylvania’s New, Technology-related Ethics Changes, In Brief, 17 Lancaster Bar Association Newsletter 1 at [forthcoming] (First Quarter 2014), available at http://www.shannonbrownlaw.com/?p=2109.