It's Time to Revise the Model Rules of Professional Conduct to Address Technology

Did you know that the Model Rules of Professional Conduct, which govern attorney ethics, were created in 1983, the same year that Microsoft introduced Word? In fact, the rules, which have been adopted in every state, have not been modified significantly since 1983 to address the massive impact of technology on the practice of law. Attorney Daniel J. Siegel, Chair of Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility, discusses why the Rules need to be updated. Dan is the principal of the Law Offices of Daniel J. Siegel, LLC and the principal of Integrated Technology Services, LLC and a nationally known speaker, and the author of 14 books.

Transcript

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Welcome to the inaugural edition of the Legal Tech Podcast, sponsored by the law offices of Daniel J.

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Siegel, LLC and Integrated Technology Services LLC, both located in Havertown, Pennsylvania.

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You can reach us at our website at Havertown Lawyer H-A-V-E-R-T-O-W-N-L-A-W-Y-E-R.

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Com and Tech Lawyer Gy dot com T-E-C-H-L-A-W-Y-E-R-G-Y.

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Com I'm Attorney Dan Siegel and I'm the principal of the offices of Daniel J.

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Siegel and the President of Integrated Technology Services.

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These podcasts are designed to provide relevant information to lawyers, legal staff and others about issues relevant to the legal profession.

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The podcasts will cover everything from law, ethics, technology, and anything else that impacts the practice.

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The ethics of the practice or the technology behind the practice of law also impacting small businesses.

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So I'm Dan Siegel and I'm here today with our first episode, and I hope you'll come back for more.

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The first episode is why the rules of Professional Conduct need to be revised to address technology.

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Let me start by explaining that the current model rules of professional Conduct, which were created by the American Bar Association, serve as the basis for the rules of professional conduct.

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The rules of ethics for lawyers in every state in the country.

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As a result, those States review the model rules and then create their own rules for the attorneys in their state.

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And while there are differences in many cases, the model rules are relatively similar or identical in many States.

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But the model rules were created in 1983.

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And if you think about that, the model rules were created the same year that Microsoft introduced Microsoft Word and one year after the release of the Commodore 64 computer.

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Those were the days when law libraries were in a computer station.

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They were filled with books.

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There were multiple volumes and everyone used.

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The idea of online research was just starting and certainly the ability to see and know everything.

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It seems like that's happening in the legal world really didn't exist in 1983.

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In fact, I wouldn't be surprised if many of the people listening to this podcast who are licensed attorneys weren't even alive when the model rules were created.

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That's a long time ago, and that's why I want to discuss why these rules need to be revised.

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This is also the subject of my Hot Buttons column in the American Bar Association Law Practice Divisions magazine called Law Practice.

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I discussed this issue in much greater detail in the My Magazine column, which will appear in the November December 2021 issue.

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So think about it.

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We are four decades roughly removed from the time when the model rules were created.

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Those model rules have in fact, been modified over the years, but not very much.

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That's the problem.

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Our lives have also been modified a lot by technology.

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Think about it.

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In 1983, we were using Typewriters Onion skin paper those types of things no one thought that you would be carrying around the phone that was more technologically advanced than pretty much any computer that anyone even imagined back in 1983.

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As a result, the word technology was not really in the legal vocabulary and certainly not in the minds of the drafters at that time.

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Like the practice of law, everyone was focused on the geography rather than the technology.

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Things have changed.

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Not only have they changed, but when you think about it, they really changed.

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Once we started and went through our quarantine and the COVID-19 pandemic, let me give you some examples.

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So suppose you're an attorney licensed in Texas and you live in Pennsylvania, but you provide legal advice solely to clients in Texas, or perhaps you're an attorney who's licensed in New Jersey but began handling all of your client matters from your Delaware shore home during the Pandemic, or vice versa.

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Similarly, you could be a Pennsylvania attorney licensed to practice in Pennsylvania, and you have a client, a Pennsylvania entity that is about to enter into an agreement with a California company that will be under California law.

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Are you allowed first to practice from those remote locations in those States where you're not licensed? If you're the latter example, are you, as a Pennsylvania attorney permitted to provide advice about California law when you're not licensed there? Which means, presumably you may not know California law.

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Those are questions that are based on technology, geography, ethics, and practicality.

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None of this is in the model rules.

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Or what if your firm no doesn't scan all of its documents and financial records and then your building Burns down or it's destroyed in a Hurricane? Have you met your ethical requirements by simply saying, well, we maintain them in our record room when you could have scanned them and store them in the cloud that area outside your office that didn't even exist in our minds.

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Back in 1983, the closest thing we had were AOL disks that were everywhere.

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And, of course, AOL it does exist.

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But who uses AOL? I could give you many, many more examples of the problem, but the problem is even more acute because under the rules, if you read them literally, a lawyer practicing in Delaware, but only handling his clients in New Jersey is actually practicing law in a jurisdiction where he or she is not licensed.

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That's the unauthorized practice of law, which could subject the attorney to discipline.

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But is that really what the disciplinary system is about? Because that attorney isn't hanging out a shingle or telling his neighbors come to me and I'll draft your Wills.

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He or she is simply practicing law from where he is located.

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That didn't happen in the old days when the model rules were created, and certainly it didn't happen with the frequency it did once the pandemic occurred.

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Yes, bar associations all over the country as well as the American Bar Association issued guidance opinions saying it's okay.

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But when you read the rule about unauthorized practice of law, you discover, oh, my God, that really only applies to the person in the state, and that subject to that state's rule.

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So even though Pennsylvania, the Pennsylvania Bar Association Legal Ethics Committee, which I chair, we've opined that it is permissible for a lawyer in Pennsylvania, physically in Pennsylvania, but not licensed here to represent his New Jersey clients.

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But what if New Jersey decides to the contrary, that lawyer is going to be subject to potential prosecution for unauthorized practice of law? That's not likely.

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But it points out some of the problems.

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The model rules and the rules that have been adopted really never even thought about technology.

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The technology.

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The word technology doesn't appear in the model rules anywhere.

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There are a couple of comments that mention technology, such as the revisions to the comments that addressed competence, stating that attorneys should understand the risks and benefits of technology.

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But comments aren't rules.

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Attorneys can't be disciplined for violating comments.

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The rules themselves are noticeably silent about technology.

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They certainly don't talk about computers.

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They don't talk about the circumstances when someone inadvertently blind carbon copies or carbon copies a client or send email to the wrong person, which is different qualitatively from when you may have mailed a letter to the wrong person.

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And when you think about it, the word electronic, which is often a synonym or even a euphemism for technology.

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That word never appears in the rules so much.

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It appears five times in the context of electronic communications, but not to the extent to address the problems that we have now under the rules, the rules need to be updated.

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It's talking about what happened 40 years ago and trying to apply it.

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Now you wouldn't certainly use the same computer skills or computer knowledge in 1983 that you did.

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Now I'm a geek.

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People know me and I'm known as the geek lawyer, but guess what? In 1983, I didn't even own a computer.

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I bought my first one in 1986 and that had a 20 megabyte hard drive.

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So the times are very different.

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Think about the words that are in the model rules, a writing while it acknowledges electronic records under rule one0.

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N there's a real difference, as I said, between electronic and paper documents diligence communication.

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All of these concepts that are embodied in the rules, all are based on thinking about paper, and certainly the ability to respond promptly, which the rules encourage is a real difference.

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Now, from 983, we really didn't have email with clients.

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Clients didn't text with their attorneys.

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There wasn't instant messaging in all of those systems that now exist.

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Yet the rules haven't even considered those matters.

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Similarly, IOLTA lawyers trust accounts the IOLTA rules, and they differ from state to state.

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But in many States, you only need to maintain your IOLTA records for a limited time, perhaps five years after the matter closes.

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But why should that be? There's nothing more sacred than a lawyer's trust account.

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And issues can arise with regard to lawyers who mishandle their trust accounts.

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Well, five years of records may not be enough.

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And since bank statements are electronic and they can be scanned if for some reason the lawyer gets them on paper and storage is dirt cheap and you can store things on the cloud.

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Shouldn't lawyers be required now to maintain IOLTA records for an unlimited period of time so that in the event there is an issue, a question, a problem that can be addressed with those records rather than oh, I'm sorry, it's not around anymore.

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I guess I just don't have those records.

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But the whole idea of revising the model rules has become far more relevant since the Pandemic.

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We look at it, and we see that the model rules and the rules adopted in almost every state address unauthorized practice of law from the perspective of the stake where the lawyer is physically located, even though he or she may be practicing exclusively in another state where he or she is licensed and just happens to be in another jurisdiction, they could be on vacation.

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They could be away for extended period of time.

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But the rules don't really address those circumstances.

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The Covet Pandemic highlighted these inconsistencies and spotlighted, among other things, the ethical necessity of having a paperless office.

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The issue of shouldn't every document be electronic and stored both on site and off site? Because during the pandemic and the quarantine, if your files were only on paper, those files were of no use to you.

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You needed electronic access.

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And then when we talk about electronic access, you run into all of the other questions about the obligations to keep electronic records confidential.

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When those records contain confidential or sensitive information, that's why lawyers and their firms are often targets of hackers.

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Why? Because they're maintaining information that hacker cybercriminals want information like name, Social Security numbers and dates of birth.

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The Aba adopted the Model rules back in 1983, when, as I said, many of the people who listen to this podcast may not even have been alive or were very, very young.

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It's been 40 years since those rules were adopted, and it took study after study and Commission to create those rules, which replace the prior disciplinary rules.

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And there have been some changes, particularly those through the Aba 2020 Commission.

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But they haven't really brought us up to date.

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They haven't really addressed the issues that have arisen, and that will continue to arise that simply don't fit into the square hole for the round peg of the rules of professional conduct.

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So it's time to look at those.

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For the model rules to catch up.

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Lawyers depend on technology for virtually everything they do, and firms need to consider technology in every aspect of their practice, from hiring to management to ethics.

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Yet somehow, the rules, the rules of ethics.

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The rules that apply to all of the attorneys and which apply to the staff through the attorneys are still living in the 1980s.

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It's time to consider a change.

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I'm Dan Siegel.

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I hope you've enjoyed our inaugural edition of the Legal Tech Podcast.

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We anticipate having multiple podcasts and bringing on guests and covering a wide range of topics.

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You can find the podcasts online and they're available on our Law firm website, which is also at Daniel J Siegel

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Com.

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D-A-N-I-E-L-J-S-I-E-G-E-L.

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Com.

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And when you go to the site you'll see on the drop down menu for the site, we have a drop down for our publications.

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Click on Podcasts.

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We'll also be providing these on other areas of the web, so look for them there.

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If you have comments or suggestions or want to appear on a podcast or anything at all, you can email me at Dan at Daniel J.

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Siegel.

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Daniel J-S-I-E.

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Gel.

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Com.

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Thank you for listening.

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We hope you've enjoyed this podcast and look forward to visiting with you more.