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The Model Rules of
Professional Conduct and
Electronic Tools:
How Ethical Rules Must Adapt
to Address Current and
Forthcoming Technologies
By Melissa Freeman
ABA Must Address:
The Importance of Existing and
Forthcoming Innovative Technologies
The Ethics 2000 Commission’s Changes
to the Rules Do Not Contemplate
Technology
The Rules Must Change to Encourage
Technological Advancements
The Importance of Technology:
Current and Predicted
Current Technology
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Web-based advice
Web-based client intake
Electronic conflict checks
Security measures
Electronic client contact
Email
Instant & Text Messaging
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Electronic Filing
The Importance of Technology:
Current and Predicted
Future Technologies Predicted by Legal
Technologists
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Advanced conflicts checks software utilizing
artificial intelligence
Advanced risk assessment software utilizing
artificial intelligence
Web-based case tracking
Computer customized advice
Access to knowledge & additional legal information
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Computer-based confidentiality services
Current State of the Rules
Ethics 2000 Commission Did Not
Contemplate Technology Innovations
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Unauthorized practice of law, R. 5.5
Duties to prospective clients, R. 1.8
Scope of representation, R. 1.2
Competency, R. 1.1
Conflicts of interest, R. 1.7
Confidentiality, R. 1.6
Informed consent, R. 1.0
4 Issues Raised by the Rules
Whether electronic communications
constitute a “writing” as required for
informed consent
Whether on-line practice constitutes the
unauthorized practice of law
When attorney-client relationships are
formed over the internet
What electronic communications are
privileged
How The Rules Must Change
Electronic communications should
constitute a writing as required for
informed consent
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E-mail is recognized as an electronic record,
but instant and text messaging are not
addressed
Instant messages are typically archived by service
providers
Text messages are sometimes saved on servers,
but only temporarily
How The Rules Must Change
Electronic communications should
constitute a writing as required for
informed consent
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E-mail is recognized as being “signed” by the
sender. The same should be considered for
instant and text messaging.
E-mail, instant messaging and text messaging
are all captured, and constitute an “electronic
record of communication”
How The Rules Must Change
Rules Governing the Unauthorized
Practice of Law Should Clearly Address
Practice in Cyberspace
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Must set forth clear guidelines
General advice on-line OK?
Specific advice on-line OK if attorney uses a
disclaimer?
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ABA should address within R. 5.5 or its
accompanying comment
How The Rules Must Change
The solution is not a cyber jurisdiction:
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Legal technologists presume service
providers and on-line users will regulate but
ABA is in the best position to regulate
attorneys because on-line practice implicates
several other Rules of Professional Conduct
Unauthorized Practice of Law, R. 5.5
Restriction on the Right to Practice, R. 5.6
Communication Concerning a Lawyer’s Services,
R. 7.1
Advertising R. 7.2
How The Rules Must Change
Should Clearly Define When an AttorneyClient Relationship is Formed Over the
Internet
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Disclaimer enough?
Separate communication manifesting a lack of
consent to represent the client required?
How The Rules Must Change
Electronic Communications Should Be
Privileged
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U.S. v. Segal, Northern Dist. Of Illinois – electronic
communications viewed in camera to determine
whether they were intended to be privileged. The
court considered the content of the message instead
of the form of the message.
Attorneys will have the burden to implement security
measures for all electronic communications
How The Rules Must Change
ABA should revise the rules to consider
current and forthcoming technologies used
in the practice of law.
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Result: Greater certainty for attorneys who
use technology in their practice of law