CHICAGO, Sept. 12, 2011 — The American Bar Association Commission on Ethics 20/20, in its release of initial proposals for comment, is recommending amendments to the ABA Model Rules of Professional Conduct and other association policies to take into account the proliferation of new technologies, including cross-border practice issues, lawyer mobility and differences in lawyer rules across jurisdictions.

The recommendations relate to four areas:

• Admission by Motion – The current rule permits lawyers admitted in one U.S. jurisdiction to be admitted to another jurisdiction after actively practicing there for five of the last seven years.  The recommendation would amend the rule to allow lawyers to qualify for admission by motion after three years instead of five.

• Multijurisdictional Practice – Recommendations would amend Model Rule 5.5 in two areas:
  • Lawyers practicing in one jurisdiction would be allowed to establish a practice in a new jurisdiction while they pursue admission to the new jurisdiction (5.5(d)).

The comment will indicate that:

• Lawyers can be considered to have established “an office or other systematic and continuous presence” in a jurisdiction if they direct electronic or other forms of advertising to clients in that jurisdiction with the intent of representing those clients (5.5(b)).

• Duty of Confidentiality –  Lawyers changing firms may disclose limited confidential information for purposes of checking conflicts. The recommendation would add a new comment, explaining the ethical considerations associated with these disclosures.

• Conflict of Interest – Regarding Model Rule 1.7, the recommendation would clarify that lawyers and clients may agree to be governed by a particular jurisdiction’s conflict of interest rules, to reduce some of the choice of law problems that arise due to inconsistencies among jurisdictions’ conflict of interest rules.

The commission’s Initial Draft Proposals are posted on its website, and will also be circulated for comment.  The recommendations may undergo further revision before being presented to the association’s policymaking House of Delegates for consideration in 2012.  A memo from the commission co-chairs soliciting comment on these issues is available here.

In developing the recommendations, the commission solicited feedback from a wide array of legal entities, including courts, domestic and international bar associations, law schools and individuals.

The ABA Commission on Ethics 20/20 was created in 2009, and charged with performing a thorough review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments.  The commission’s priorities and initiatives are listed here.

Learn more about the Commission on Ethics 20/20, its mandate and its membership here.

With nearly 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world.  As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

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