Technical Revolution Leads to Ethical Evolution in the Keystone State

Pennsylvania attorneys will be bound by a new set of ethical rules effective November 21, 2013 as a result of the recent adoption of amendments to the Pennsylvania Rules of Professional Conduct. The changes, adopted by the Supreme Court of Pennsylvania, were recommended by the Disciplinary Board of the Supreme Court of Pennsylvania in a Notice of Proposed Rulemaking issued on April 13, 2013. The full text of the changes, as well as explanatory commentary is published in the Notice.

After amendments to the Model Rules of Professional Conduct were approved by the ABA House of Delegates in August of 2012, Pennsylvania’s Disciplinary Board (in recognition of the growing impact of technology on the practice of law) acted quickly to “address the need for changes in detection of conflicts of interest, outsourcing, technology and client development, and technology and confidentiality.”

The following Pennsylvania rules and/or applicable comments have been modified:

  • Rule 1.0 Terminology
  • Rule 1.1 Competence
  • Rule 1.4 Communication
  • Rule 1.6 Confidentiality
  • Rule 1.17 Sale of Law Practice
  • Rule 1.18 Duties to Prospective Clients
  • Rule 4.4 Respect for Rights of Third Persons
  • Rule 5.3 Responsibilities Regarding Nonlawyer Assistants
  • Rule 5.5 Unauthorized Practice of Law; Multijurisdictional Practice Of Law
  • Rule 7.1 Communications Concerning a Lawyer’s Service
  • Rule 7.2 Advertising
  • Rule 7.3 Solicitation of Clients

Attorneys practicing in Pennsylvania are advised to read the rules as well as comments in order to become completely familiar with the new requirements. A few of the principal areas covered are discussed below.

Although the text of Rule 1.1* relating to Competence remains the same under the Amendments, Comment 6 (Maintaining Competence) is revised as follows: “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.” (Underlined language represents language inserted pursuant to the amendment.) These violations could include transgressions such as maintaining a weak password, neglecting to utilize a metadata scrubber or ignoring the internet as a discovery tool. The message is clear – mastering substantive law is not enough. All lawyers must acquire technological skill in order to continue serving clients efficiently AND ethically.

The amendment to Rule 4.4(b) clarifies that a lawyer receiving electronically stored information that he or she knows or reasonably should know was sent inadvertently must promptly notify the sender of the mistake. Comment 2 specifies that the duty to notify extends to metadata. (Metadata is the embedded information contained within electronic documents that lays out the document’s history, tracking, and management. Referred to as “data about data”, it reveals characteristics such as title, date, and author of a document. Additional information includes modifications or deletions previously made to a document - not intended to be revealed or disclosed.)

Attorney client relationships are still by and large developed in the traditional manner - in person and in an attorney’s office. However, prospective client relationships and the accompanying obligations set forth in Rule 1.18 also now arise via e-mail, websites and other electronic means. The factors considered in determining whether such a relationship has been formed include:

  1. Whether the lawyer encouraged or solicited inquiries about a proposed representation (as opposed to just posting general information on the website);

  2. Whether the person encountered any warnings or cautionary statements that wer intended to limit, condition, waive or disclaim the lawyer’s obligations;

  3. Whether those warnings or cautionary statements were clear and reasonably understandable; and

  4. Whether the lawyer acted or communicated in a manner that was contrary to the warnings or cautionary statements.

One remedy is to place a disclaimer alongside the inquiry form that appears on the law firm’s website.

Sample Disclaimer for Inquiry Forms on Websites: “The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.”

Attorneys who continue to stick their heads in the sand regarding technological developments and concepts could be in for a rude awakening. Those who fail to keep up with the times could very well inadvertently violate their ethical duties.

Thanks to Carole Levitt (President of Internet for Lawyers) who first made me aware of this significant development and directed me to “Justices Add Tech Savvy to Professional Responsibility”.

* Both MRPC 1.1 and Pennsylvania Rule 1.1 provide: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

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