ABA Commission on Ethics 20/20 Michael Traynor, Commission Co-Chair Andrew Perlman, Chief Reporter Judith Miller, Commissioner & Chair of Outreach Committee

Jamie S. Gorelick (Co-Chair), WilmerHale (Washington, D.C.) Michael Traynor (Co-Chair), President Emeritus, ALI (California) Stephen Gillers, New York University Law School Jeffrey B. Golden, London School of Economics William C. Hubbard, Nelson Mullins Riley & Scarborough (S. Carolina) George W. Jones, Sidley Austin (Washington, D.C.) Justice Elizabeth B. Lacy, Virginia Supreme Court Carolyn B. Lamm, White & Case (Washington, D.C.) Judith A. Miller, Fmr. Chair, Section of Litigation (Washington, D.C.) Judge Kathryn A. Oberly, District of Columbia Court of Appeals Roberta Cooper Ramo, Modrall & Sperling (New Mexico) Herman J. Russomanno, Russomanno & Borello (Florida) Theodore Schneyer, University of Arizona Law School Carole Silver, Indiana University Maurer School of Law Frederic S. Ury, Ury & Moskow (Connecticut) Chief Justice Gerald W. VandeWalle, North Dakota Supreme Court Commissioners

ABA Commission on Ethics 20/20: Studying a “New Normal” Created in 2009 to study how rules and policies concerning lawyer conduct need to be revised in light of:  Changes in Technology  Globalization

Ethics 20/20 Commission Working Groups  Technology  Outsourcing  Conflicts of Interest, Uniformity & Choice of Law  Inbound Foreign Lawyers  Alternative Litigation Financing  Entity Regulation/Alternative Business Structures  Rankings

The Past: Protecting Client Information Technology Working Group (Confidentiality)

The Reality: Protecting Client Information Technology Working Group (Confidentiality)

Question Do lawyers have different ethical obligations when storing confidential information on these new forms of technology?

Commission Proposals Under Consideration Amend several Model Rules and their Comments to offer more clarity regarding a lawyer’s obligations when using technology Create a user-friendly ABA website with answers to common questions

The Past Technology (Client Development)

Blogs Pop-up Ads Websites The Present Technology (Client Development)

Question Do lawyers have different ethical obligations when using new technology for client development?

Commission Proposals Under Consideration Existing rules and principles apply well to new technology Clarifications needed in certain areas, such as the definition of a “solicitation”

Outsourcing: Abroad Outsourcing

Outsourcing: Domestic (More Common) Outsourcing

Question What ethical obligations do lawyers have when using lawyers and nonlawyers outside the firm?

Commission Proposals Under Consideration Identification of factors to consider when retaining lawyers outside the firm Identification of factors to consider when using nonlawyers outside the firm (e.g., investigators, electronic discovery vendors)

Lawyer Mobility in an Increasingly Borderless World Uniformity Working Group (Lawyer Mobility)

Questions How much mobility is necessary to meet client needs while ensuring appropriate client protections? Do the existing rules offer sufficiently clear guidance to resolve inconsistencies among jurisdictions?

Commission Proposals Under Consideration Model Rule amendments to clarify how to resolve inconsistencies among jurisdictions’ rules Permitting more lawyer mobility while ensuring adequate protections for clients and the public

Foreign Lawyer Fly-In/Fly-Out (FIFO) Inbound Foreign Lawyers

Question How should the profession regulate the practice of foreign lawyers who need to visit the United States to assist their clients?

Commission Proposals Under Consideration Amendments to several Model Rules that will more clearly authorize, but place appropriate limitations on, the practice of foreign lawyers in the United States

Alternative Sources of Litigation Financing for Lawyers and Clients Alternative Litigation Financing

Questions What is alternative litigation financing? What are a lawyer’s ethical obligations when the lawyer (or the client) wants to use it?

Commission Proposals Under Consideration Development of a white paper that describes how existing principles and values apply to these financing arrangements.

Question Can alternative law firm practice structures enable greater innovation and more responsiveness to client needs in a manner that is consistent with the profession’s core values?

Alternative Law Practice Structures: The Commission’s Conclusions No publicly traded law firms No outside passive equity investment in law firms No multidisciplinary practice

Law Firm Rankings and Rating Resolved, that the American Bar Association examine any efforts to publish national, state, territorial, and local rankings of law firms and law schools.

Law Firm Rankings and Ratings Tier One? Very ReliableRankings? Tier Two? Reliable Rankings? Tier Three? Unreliable Rankings? Rating the Rankings?

Commission Findings No changes to the Model Rules are necessary Statistical analysis of hundreds of rankings would be prohibitively expensive Recommendation that the Standing Committee on Ethics and Professional Responsibility produce an opinion examining confidentiality issues as well as concerns about misleading communications

Commission Outreach to Date Public hearings –Dozens of witnesses at public hearings held throughout the country –Hundreds of comments received on the Commission’s initial proposals and papers Presentations to state, local, specialty, and international bar associations Meetings with multiple ABA entities CLE, podcasts, conferences, and webinars relating to the Commission’s work Presentations to the Conference of Chief Justices and the National Organization of Bar Counsel

ABA Commission on Ethics 20/20 Michael Traynor, Commission Co-Chair Andrew Perlman, Chief Reporter Judith Miller, Commissioner & Chair of Outreach Committee