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MyShingle Comments on Proposed Model Rule 5.3 and Last Chance to File Comments on ABA Commission on Ethics 20/20!

by Carolyn Elefant on November 30, 2011 · 4 comments

in Ethics 20/20

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Below is my final set of comments on the ABA Commission on Ethics 20/20’s proposals.  My comments address the Commission’s proposal to subject lawyers to the same level of supervisory oversight for passive cloud services as for human, non-legal service providers. For reasons discussed in this post, I strongly oppose any additional requirements which pose additional burdens on lawyers who seek to use the cloud.

Moreover, I just don’t see the need to extend the oversight and supervisory obligations of Model Rule 5.3 to passive services, except if the point is backlash against the cloud.  Think about it — lawyers have long been permitted to rely on services like banking, phones and computerized legal research without the need for an express directive to oversee and instruct these vendors.  As my comments discuss, lawyers must act prudently in selecting any service – that’s not just an ethical mandate, but simple common business sense.  We can’t run effective profitable practices if we employ phone service that goes down every two days or legal research tools that produce inaccurate results.  Do we really need more ethics rules governing selection of passive services?

In addition, as my comments point out, it may well be impossible for lawyers – and particularly solos to meet the active oversight and instruction requirements proposed in Model Rule 5.3.  Solos lack the bargaining power to force vendors to modify their services to our liking.  So why impose a requirement that can’t be enforced?  You can read my full comments at the end of this post, and my earlier comments here.

But more important than reading my comments, why not consider filing your own – even if you completely disagree.  Today is the deadline for filing comments on all of the Commission’s proposals as it sprints towards the finish line of the Ethics 20/20 initiative.  The Commission, in my view, has bent over backwards to engage all lawyers in this effort and consider comments on these rules that will have significant repercussions for how we practice law.  So it’s disheartening for me to see that so few solos – who will be the most impacted by these changes – have stepped up to the plate and participated in this process.

Truth be told, I didn’t expect much from the ABA’s GP Solo Section – though I must credit them for their  effort to engage solos.  I  tried to lend a hand to GP Solo – and they were very supportive — but at the end of the day, no one on the committee other than myself but me was willing to go beyond a phone call and actually draft comments.  Of course, if we had, there’s no guarantee they would have been submitted given the levels of review that they’d have to go through.  Still,  given that several other ABA sections chimed in on some of the proposals, it’s unfortunate that GP Solo wasn’t able to follow through.

But what upsets me most is that the solo and small firm bloggers who aren’t affiliated with the ABA (and in fact, are frequent critics) weren’t much help either.  With the exception of my comments, as of yet, I have not seen any submissions by any other solo bloggers – (a handful of solo lawyers who don’t blog about the solo experience have chimed in though).  The silence of the bloggers is a far worse affront than GP Solo’s silence.

First, unlike GP Solo — which is subject to all kinds of bureaucratic mandates from above, bloggers are free from these restrictions. Second, in contrast to GP Solo which is a bit staid, most solo bloggers embrace innovation and social media marketing, the cloud and virtual law offices and flat fees and doing away with location-based ethics rules.  Yet, if these “thought leader” lawyers are truly interested in spreading innovation to the profession, they’ve got to join the fight to eliminate the rules that stand in the way.

Fortunately, there is still time.  Please – solo bloggers and solos –  take a quick look at the Commission’s proposals and share your views today.  Let the Commission 20/20 know that we solos are here and  ready to take on the future.

MyShingle Comments on Proposed Model Rule 5.3

  • http://flanderslawfirm.com Joseph Flanders

    Carolyn,

    I’m a little confused.  I read the proposed amendments to the rule and (to me) they don’t appear to deal exclusively with cloud computing.  Is there particular language in the proposed amendments that I missed?  Also, is it not feasible to simply contact the cloud storage provider and explain your concerns about privacy and their obligations as a non-lawyer?  I’m not saying your wrong, I’m just a little confused about what the “additional burdens” are?

  • Carolyn Elefant

    Proposed Model Rule 5.3 defines non-lawyer assistance as including paralegal services, document reviewers and “internet based storage services” which to me is short hand for the cloud. Originally, Model Rule 5.3 was intended to cover “human” non-lawyer providers who can be (and indeed should be) actively monitored and supervised by lawyers. In other words, a lawyer can’t outsource document review to a company and when it comes back deficient, simply through up his hands and say “It was their fault.”
    But “passive” services like banking, phones and “internet storage” (cloud) are a different animal, in my opinion.  Because they don’t involve the same element of human discretion, lawyers have always been allowed to sign up for these services and rely on them without additional obligation.  Of course, lawyers can’t ignore issues – if we are using a phone service that shuts down every other day and clients can’t get in touch with us and file ethics complaints, we can’t just blame the phone company.  But at the same time, we are not required to monitor the phone company’s daily activities or stay on top of them in the same way that we must do so with document review or non-law firm paralegals.
    Your solution is a good one – and it may be that I am making a mountain out of a molehill. But I get very nervous when passive services are lumped into the same category as human services, and when the same obligations apply to both – because I think that can lead us down a slippery slope where we have to monitor everything.

  • http://flanderslawfirm.com Joseph Flanders

    Ok.  I agree that the slope is looking slippery.  Thank you for the clarification.  You make a good point.  Cloud computing certainly appears to be more “passive” – like a phone system.  Perhaps that is what needs addressing in the proposed amendments:  a clear delineation between what non-lawyer services are and what they are not.
    As an aside, I’d like to be more involved on these topics but I am new at this and don’t think I could make a very informed comment to the ABA.  I do, however, very much appreciate you making an effort and keeping the rest of us informed about what is going on.  The more I read and understand, the more I am inclined to do something about it.

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