The Ethics of Technology Competence: The ABA Speaks

In 2009, the American Bar Association established the Ethics 20/20 Commission to examine the state of professional responsibility guidelines for the 21st Century.  After many meetings, numerous comments and over 100 hundred presentations to interested audiences, the commission has just issued its report and recommendations.  Due to globalization and advances in technology, the Commission has determined that changes in the ABA Model Rules of Professional Responsibility are in order.  In sum, the Commission notes:

[I]t is important to make explicit that a lawyer’s duty of competence, which requires the lawyer to stay abreast of changes in the law and its practice, includes understanding relevant technology’s benefits and risks.

The Commission’s recommended ethics code changes are focused on three major developments impacting the practice of law:  technology advances, legal process outsourcing and lawyer mobility.  In each of these areas, new ethics code changes are recommended.

In the changes reflecting the technological impact on lawyers and their clients, the Commission concluded:

Lawyers must understand technology in order to provide clients with the competent and cost effective services that they expect and deserve.

In addition to an ethical duty to understand legal changes which affect their clients, lawyers must also stay abreast of technology developments providing efficient legal services to which clients are legitimately entitled.  Efficiency as well competence are now recognized ethical duties lawyers owe their clients. When technology can improve either the quality of practice or the efficiency with which it is delivered, lawyers should have an ethical duty to provide it according to the Ethics 20/20 Commission.

Likewise, the proliferation of legal process outsourcing (LPO) and its anticipated growth captured the attention of the Commission.  LPO provides corporate legal departments and law firms the economic benefit of outsourcing “commoditized” legal work to part time and unaffiliated lawyers willing to work at for $20 per hour or less in contrast to law firm hourly rates for similar services as high as $200 per hour or more.  Many law firms are beginning to create their own legal process insourcing (LPI) groups to maintain control over both the work done and the profits otherwise lost to LPO organizations.

The Ethics Commission noted that ethics rules changes are needed to insure that LPO or LPI work must be adequately supervised to provide clients with assurance of quality legal representation.  (See prior posts on this site at: The Ethics of Legal Project Management and LPO’s LPM and ERM and Mark Ross’ white paper on this topic at The Ethics of Legal Process Outsourcing on the ERM site.)  Without direct licensed lawyer oversight of outsourced or insourced legal work, serious ethical compromise might occur to the detriment of clients.

Finally, the highly mobile nature of legal practice in today’s economy requires greater flexibility in regards to the lawyer’s ability to meet client needs across borders. Artificial barriers to lawyer mobility need to be lowered in order to promote greater client representation through cross border legal practice protocols.

These recommended ethics rule changes are scheduled to be taken up by the ABA House of Delegates in February 2013.  There may be no changes agreed to even then.  However, the inexorable march of time and the inevitability of market changes are virtually irresistible forces which will continue to shape client expectations whether the ABA model ethics rules formally recognize them or not.

Clearly, lawyers and law firms choosing technological advances to improve the practice of law will place themselves at the head of the parade in terms of client satisfaction and competitive advantage.

Ethical rules tend to follow the advance of practice realities.