January 2011Volume 99Number 1Page 10

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Ethics in the age of Twitter

An ABA ethics commission is looking for suggestions about how to bring the model ethics rules in line with globalization and 21st Century communications technology.

The American Bar Association is soliciting comments from lawyers, whether ABA members or not, on whether and to what extent its Model Rules of Professional Conduct, the comments to those rules, and other policies on lawyer conduct should be modified to address contemporary issues and practices involving lawyer advertising and outsourcing.

Lawyer advertising 30 years after Bates

Lawyers in Illinois may still be adjusting to the year-old Rules of Professional Conduct of 2010, adopted after years of study that began with the ABA's Ethics 2000 initiative and, in Illinois, ended with our supreme court's consideration of the recommendations of the ISBA/CBA Joint Committee on Ethics 2000 as modified by the Supreme Court Committee on Professional Responsibility. But time waits for neither people nor the law, and it's again time to look ahead. The ABA Commission on Ethics 20/20 is currently reviewing the U.S. system of lawyer regu­lation, focusing on technology and the marketplace of global legal services.

ISBA member Michael P. Downey, a partner in Hinshaw and Culbertson's national legal ethics and risk management practice in its St. Louis office, is a liaison from the ABA Law Practice Management Section to the Ethics 20/20 Commission's Technology Working Group. Downey, who also coauthors his firm's legal ethics and litigation blog, "The Ethical Quandary," at http://blog.hinshawlaw.com/theethicalquandary, commented on the commission's charge for LawPulse.

"The Ethics 20/20 Commission is trying to look at all aspects of how lawyers use the internet to develop clients. It has an open mandate to try to assess what changes the legal profession's regulatory structure will need in order to prepare for the future."

Downey explained that lawyers are still operating under antiquated advertising rules. "After the supreme court's decision in Bates v State Bar of Arizona [433 U.S. 350 (1977)], the lawyer regulation community formulated rules for lawyer advertising. Those rules are being applied today to technologies that didn't exist 30 years ago. The Ethics 20/20 Commission is attempting to assess whether it's appropriate to apply those rules to modern communications, or whether the nature and functionality of new technologies make new rules desirable."

"How do you use [a disclaimer on] Twitter?"

Downey provided some examples of issues within the committee's ambit that are becoming increasingly common and which current rules might not ade­quately address. "Let's take the issue of whether disclaimers are or should be required. How do you use those in the context of Twitter? If I'm a lawyer licensed in Illinois and I have a website, have I engaged in the unauthorized practice of law if someone who lives in Iowa, where I'm not licensed to practice, views and clicks on my website?"

Noting the increasing popularity of LinkedIn among lawyers and other businesspeople as well as the accompanying proliferation of commercial spam messages on LinkedIn groups, Downey asks, "When and to what extent is a lawyer allowed to reach out and solicit a client? What communication is permissible on LinkedIn groups?"

He also says that formally issued ethics opinions have reached different conclusions on questions involving metadata. "Was that because those opinions were based on different facts, or are they inconsistent? Do we need to change the Model Rules, or the comments, or do we need to encourage the ABA to issue an ethics opinion or white paper to provide more clear guidance to lawyers as to what should and should not be permitted?" he asks.

"Ethics opinions and court decisions have started to fill in some of the gaps in these areas," Downey says. "The 20/20 Commission is attempting to take a holistic view of things and ask where the legal profession wants the law to end up."

Non-ABA members' comments welcome

The commission has issued several papers on the matters within its charge, available on the website of the ABA's Center for Professional Responsibility at http://www.abanet.org/ethics2020. At presstime, the papers on which the commission was seeking comment included a discussion draft regarding domestic and international outsourcing and two issues papers, one on lawyer involvement in alternative litigation financing by individuals and entities other than parties to the action, their respective lawyers or insurers, also known as "third-party litigation financing," and another addressing the ABA model rule on admission on motion.

The commission has requested that comments on the discussion draft regarding domestic and international outsourcing be submitted by January 31, 2011, and comments on the two issues papers be submitted by February 15, 2011. Lawyers wishing to comment may do so by e-mailing their comments to Sen­ior Research Paralegal Natalia Vera at veran@staff.abanet.orgor posting their comments and submissions to the commission's website.

Lawyers who wish to follow and comment on the developments in the commission's work, including updates on the issues presented to the commission, notices of meetings and public hearings, and the commission's draft proposals, may sign up for its listserver by visiting its website at http://www.abanet.org/ethics2020. Downey emphasizes that lawyers need not be ABA members to sign up for the listserver, comment on proposals, or attend and testify at the committee's public hearings.

ISBA is offering a Law Ed teleseminar on January 28 entitled "Attorney Ethics in Social Media - Blogs, Facebook, Twitter, YouTube and More." Visit www.isba.org/cle/upcoming to find out more and register.

Helen W. Gunnarsson is a lawyer and writer in Highland Park. She can be reached at <helengunnar@gmail.com>.

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