December 2015 • Volume 103 • Number 12 • Page 12
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New ethics rules address outsourcing, technological competence, and more
Changes in Illinois ethics rules address lawyers' obligation to be technologically competent, when they must disclose to clients that they are outsourcing work, and other issues.
The Illinois Supreme Court enacted several important changes to the Rules of Professional Conduct on October 15, 2015. Many of the new rules reflect the increased importance of technology and how attorneys use it in their practices.
The changes address outsourcing attorney work, technology and attorney competence, lead generation services, communications with potential clients, and disclosure of information to prevent conflicts of interest, among other issues. The court also adopted rules allowing lawyers to advise clients about using, growing, and selling medical cannabis even though it is a federally controlled substance (see LawPulse, December 2014 Journal) and requiring prosecutors to reveal post-conviction exculpatory evidence (see LawPulse, September 2015 Journal). The majority of the changes are effective January 1 and are found online at http://www.illinoiscourts.gov/SupremeCourt/Rules/Amend/2015/101515.pdf.
Lawyers must stay abreast of changes in technology
Northrup comments that while, for example, a transactional attorney may not need to be able to use litigation software, "he or she should be aware generally that such technology exists and whether it might be useful or benefit the client."
Rule 1.1 has also been changed to address the growing practice of outsourcing legal work to other attorneys. This change requires increased disclosures to clients, but not necessarily in every situation. New Comment 6 to Rule 1.1 says that "the lawyer should ordinarily obtain informed consent from the client" before outsourcing work to other attorneys.
According to Northrup, "how informed consent is handled will vary according to the situation." For example, having an outside lawyer do an incidental or discrete task might not require informed consent.
Northrup suggests that informed consent could be done in a retention letter if there is a history between the lawyer and the client. However, "the critical point is that the lawyer has made a reasonable effort to ensure that the client has sufficient information to make an informed decision." As outside lawyers start handling more "serious and critical aspects of a matter," Northrup believes that the better practice is to seek informed consent on the specific issue being outsourced.
Disclosure is allowed to "resolve conflicts"
Rule 1.6, which governs the confidentiality of information, has undergone a significant change. New section (b)(7) allows the disclosure of information "to detect and resolve conflicts of interest if the revealed information would not prejudice the client." Comment 13 clarifies that when lawyers and law firms are considering a new relationship, disclosure to detect conflicts is only permissible after "substantive discussions regarding the new relationship have occurred." Section (e) 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."
Comment 18 (formerly Comment 16) has been expanded to better define this duty. Now that attorneys store data in the cloud and use other electronic means of communication, the risk of a data breach is higher than when all files were physical. Lawyers must make reasonable efforts to prevent unauthorized access to information.
When determining reasonableness, factors such as the sensitivity of the information, the likelihood of its disclosure if additional safeguards are not employed, the cost and difficulty of implementing safeguards, and whether the safeguards adversely affect the lawyer's ability to represent clients should be considered. Clients may also request that the lawyer use additional security measures. They may also give informed consent to forego the use of security measures required by the rule.
No paying for endorsements
Rule 1.18, which governs a lawyer's duties to a prospective client, has undergone a change that recognizes the increased use of technology in a lawyer's interactions with the public. The revised rule says that a person who "consults…about" (formerly "discusses") "the possibility of forming a client-lawyer relationship…is a prospective client." Northrup says that the change recognizes that non-oral communications could give rise to a prospective client-lawyer relationship.
Comment 2 provides more guidance, explaining that when lawyers invite the public to provide them with information about a potential representation, a consultation may have occurred. One example would be if a lawyer's website has a contact form that allows potential clients to provide information.
A lawyer can provide disclosures to limit his or her obligations. According to Northrup, ABA Opinion 10-457 is instructive. A warning may be posted to "avoid a misunderstanding by the website visitor that (1) a lawyer-client relationship has been created; (2) the visitor's information will be kept confidential; (3) legal advice has been given; and (4) the lawyer will be prevented from representing an adverse party."
Another significant change to the rules can be found in Comment 5 to Rule 7.2. It has been changed to address the rise in Internet-based client leads. Lawyers may not pay for recommendations. A recommendation has been defined as a communication that "endorses or vouches" for a lawyer's professional qualities. Northrup says the court added these changes to provide "some guidance to lawyers who are trying to navigate through the explosion of these types of services."
Although he finds the change a step in the right direction, he believes that it remains vague. For example, is rating a lawyer "vouching" for him or her? What about processing and advertising fees paid to lead generators - should those fees be disclosed to the consumer? "I think reasonable minds can (and will) answer that question differently."