Key Ethical Obligations in the Era of Modern Law
To achieve modernization, the legal industry is operating off a new mindset requiring focus on efficiency and innovation when making operational decisions. Legal departments, law firms, legal service providers, and other legal professionals are being more strategic with tech investments and partnerships. Many are revamping budgets, hiring or consulting with legal operations experts, refocusing goals, and determining ways to uncover data-backed insights. Throughout this transitional period, it is important not to forget the ethical obligations that lawyers owe their clients. These duties will influence tech investments and collaborative partnerships. While change is necessary and beneficial, it must be done carefully to avoid ethics violations that could provide reputational harm not only to the lawyer, but also the organization.
The American Bar Association (ABA) has model rules that most state bars follow closely.
Here are four key ethical obligations that should remain at the forefront of decisions when venturing into modern law and setting legal transformation goals:
- Competence: ABA Model Rule 1.1 requiring competent representation recently expanded, clarifying that lawyers must keep abreast of changes in the law. This encompasses the benefits and risks associated with relevant technology. As the legal industry moves into modern law, these duties arguably require that lawyers at a minimum keep informed about innovative trending technologies and basic features to remain competent. Lawyers must diligently research new technology and/or the reputation of potential partner providers before investment. Failure to do so could result in an ethical violation if issues result after utilizing news tools for a case. Understanding benefits and risks also helps the legal team make educated decisions about where to allocate legal spend and confidently demonstrate these choices to leadership.
- Communication: ABA Model Rule 1.4 requires transparent communication so clients can make informed decisions regarding representation. As legal teams decide to implement modern technologies or outsource case functions, clients must receive notice in the initial agreement and throughout the course of representation as needs evolve. Being transparent also demonstrates value to clients, fosters collaboration, and helps avoid major billing disputes.
- Confidentiality: ABA Model Rule 1.6 mandates that client information be kept confidential. In accordance with this duty, the legal team must ensure that utilized tools are secure and will protect sensitive client data. This needs to be a top priority when vetting modern technologies and provider partnerships.
- Oversight: Partnerships with alternative legal service providers (ALSPs) are trending in legal departments with the increased focus on operational efficiencies. Now law firms are starting to collaborate with provider experts for certain functions. The rise in collaborative business models coupled with ethical legal duties makes it crucial for lawyers to oversee work performed by any outside partners. Several ABA rules hold lawyers responsible for the work of their team. This extends to in-house support staff and external providers.
The ABA has formally authorized outsourcing legal and nonlegal support services when lawyers maintain competent representation, comply with duties related to supervision and assistance, notify clients, and receive informed consent from clients if the provider will be handling confidential data. However, there are specific state bar opinions on this subject that may vary.
One function many states have addressed is cloud computing, but with the uptick in ALSP usage there are endless possibilities. Predictions on future opinion topics include privacy considerations when outsourcing or the role of legal operations professionals. In the meantime, organizations should vet and audit their provider partners and technology to ensure everything is above board. This is an important step regardless to monitor success for meeting legal transformation goals and lessen the risk of ethical complaints from clients or delayed matters due to insufficient processes.
Given that that remaining ethical is the cornerstone of legal practice, as lawyers take oaths to act in accordance with the law and represent their client’s best interests. In this dynamic space where modern technology continues to enter the market, ethical duties will keep evolving and new ones will emerge. Now more than ever, lawyers must keep on top of ethical obligations to avoid hurdles for organizations when investing in legal tech or changing processes. Monitoring relevant ABA and state court model rules, opinions, and court interpretations helps accomplish this feat.
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