Client confidentiality issues examined by ABA's Commission on Ethics

The American Bar Association Commission on Ethics 20/20, in its release of initial proposals for comment, is recommending amendments to the ABA Model Rules of Professional Conduct to account for lawyers' growing use of technology, especially technology that stores or transmits confidential information.

One of the commission's recommendations would add a new paragraph to the existing rule on confidentiality and require lawyers to make reasonable efforts to prevent the inadvertent disclosure of, or unauthorized access to, confidential information, including information in electronic form. Another recommendation would clarify that a lawyer's duty of competence includes a duty to remain aware of the benefits and risks associated with technology. A third recommendation concerns the inadvertent transmission of information and clarifies that lawyers have a duty to notify the sender of both physical and electronic information under certain circumstances.

"Cloud computing provides a number of challenges to lawyers in protecting client confidences," said commission Co-chair Jamie Gorelick, a partner at Wilmer, Cutler, Pickering, Hale, and Dorr LLP in Washington, D.C. "The commission's goal with these recommendations is to re-affirm the core responsibilities of a lawyer's obligation to the client," she said.

Commission Co-chair Michael Traynor of Berkeley, Calif., chair of the American Law Institute Council, notes that new technologies will continue to change the practice of law. "Our work is evolutionary and transitional," he said. "We are addressing the impact of the technological changes we see now, and pointing out markers that we hope will be useful in the future."

The commission's current proposal is posted on its website, and will also be circulated for comment. The recommendation may undergo further revision before being presented to the association's policymaking House of Delegates for consideration in 2012.

In developing the recommendations, the commission solicited feedback from a wide array of legal entities, including courts, domestic and international bar associations, law schools and individuals. A draft Issues Paper on this issue was circulated and posted on the commission's website in September 2010.

The ABA Commission on Ethics 20/20 was created in 2009, and charged with performing a thorough review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments. The commission continues to solicit comment on Issues Papers.

Learn more about the Commission on Ethics 20/20, its mandate and its membership go to www.americanbar.org.

Published: Thu, May 5, 2011

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