Pennsylvania Attorney Ethics Rules & Being Competent with Technology

As I have mentioned in the past, my name is Jennifer Ellis, and I write the majority of the online content for Lowenthal & Abrams. I also get asked to speak on issues involving legal ethics quite frequently. In fact, next month, I will be speaking on the changes to the Pennsylvania attorney ethics rules in a webinar for the Pennsylvania Bar Institute. The issues I will be addressing include a discussion on how Pennsylvania lawyers must be competent with technology.

We, at L&A believe that following the ethics rules are crucial, and also, that our clients deserve to know what those rules are.  As a result, I would like to share with you an expanded version of an article that I wrote for an upcoming newsletter for the Solo and Small Practice Section of the Pennsylvania Bar Association.

Introduction to the Rules

I am sure, given the bad rap we attorneys get, the public might think that we don’t have any rules we have to follow. But this is actually not true. As it happens, attorneys have very strict ethical rules. And we take the rules very seriously. Each state’s rules might vary a bit, but regardless of where the attorney practices, the reason these rules exist is to protect the public and to protect the legal profession from lawyers behaving badly. Every so often these rules are changed, and that is the case as of November, 21, 2013. The current changes in the Pennsylvania attorney ethics rules have several basic themes.

1. Attorneys must use technology properly in their legal practice if they are to remain competent lawyers.
2. Attorneys are required to appropriately manage any nonlawyers with which they work.
3. Attorneys are required to choose any outside lawyers they bring into a case with care.
4. Attorneys must be careful of their clients’ confidential information.

Now, none of these themes are new. But in an effort to clarify some issues and to update the rules for modern technology, the Pennsylvania Supreme Court decided to update the rules I am about to discuss.

Why Are the Rules Changing?

Over the past several years, the Pennsylvania Bar Association (along with the American Bar Association) has been exploring how technology impacts the legal profession. This exploration lead to Ethics 20/20, which in turn lead to recommended changes by the ABA and the PBA. The PBA’s recommended changes have been adopted and, as a result, technology, along with other important issues, are now addressed in the Pennsylvania Ethics rules.  The amended rules take effect on November 21, 2013.  The complete rules are listed on the Pennsylvania Disciplinary Board’s website.

What Are the Changes to the Pennsylvania Attorney Ethics Rules?

Rule 1.0 Terminology

Rule 1.0 defines certain terms, so we all know what we are talking about throughout the rules. The change in rule 1.0 is to the definition of writing.  Writing now includes “electronic communications.” This change now makes it clear that all methods of communication are covered by the rules, including our most common method of communication these days, email.  

Rule 1.1 Competence

Rule 1.1, as the title suggests, deals with being a competent attorney.  In order to practice law, attorneys must maintain their competence. We do this through attending CLE (continuing legal education) seminars, as well as through making certain we are familiar with the case law and any statutes that pass in our areas of practice.

The changes impact several areas.

1. Sometimes lawyers will send a case out to another firm, or bring a knowledgeable lawyer in to help with a case. (Lowenthal & Abrams is normally the firm to which other lawyers bring their cases for litigation.) One of the changes to Rule 1.1 states that if an attorney is going to bring another attorney into a case, from outside his or her firm, the first attorney “must reasonably believe the other lawyers’ services” will be competent and ethical.  What is reasonable, exactly?  Well, it depends on a number of factors, including: education experience, nature of the services, and the relevant rules.
2. If a lawyer decides to bring another firm into a case, that lawyer needs to communicate with the new lawyers as well as the client about who will take on what levels of responsibility. In other words, what each of the firms will do on the case.
3. The next change is the big one. in order for lawyers to remain competent, they must now appreciate, “the benefits and risks associated with relevant technology.” What this means is (a) that there are certain types of technology that lawyers simply need to use. To me that would include such things as legal research and computers. And there are other types of technology that lawyers are not required to use, but if they do use them, they need to make sure they are aware of the risks and keep the risks under control.

Lawyers Shouldn’t Panic About Technology!

Attorneys should not worry that they must, all of a sudden, become technology experts. Rather, they must be reasonable and responsible in their use of technology. Lawyers should simply be aware of what is used in the normal course of business by the majority of attorneys, and be sure they are using what we all believe is reasonably required to practice properly. For example, as I wrote, electronic legal research is something that all attorneys must use. Failure to use electronic research means that a lawyer cannot possibly be aware of all of the recent changes in the law. Books cannot keep up with recent cases, whereas Lexis and Westlaw can.

Second, attorneys may feel free to use iPads, the Cloud and other forms of technology, but if they do, they have to manage the risks. For example, if a lawyer uses an iPad or any kind of tablet or smart phone, that piece of technology will have a lot of client data on it. As a result, if the iPad or smart phone gets stolen or lost, it is crucial that the attorney (or her IT department) be able to wipe the device to keep confidential data protected. Further, if the law firm is going to use cloud computing, it must choose its provider carefully.  For example, Dropbox doesn’t encrypt the data sitting on its servers. Therefore, if a firm is going to use Dropbox, it must add encryption.

 Rule 1.4 Communications

I sometimes answer ethics questions on Avvo. And one of the most common complaints I read is lawyers failing to respond when their clients call or email.  Lawyers are ethically obligated to communicate with their clients in a timely fashion. Understand, this does not mean that an email must be returned within an hour, or even within the same day. But I am amazed at the number of lawyers who let months go by without returning a client’s call.  If a lawyer is going to allow communication through a specific format, the lawyers must respond when a client contacts him or her.  If a lawyer doesn’t want to answer texts from a client, and a client texts her, then the lawyer needs to make clear that she does not accept texts from clients.

Rule 1.6 Confidentiality of Information

One of the hallmarks of being a lawyer is the ability to keep information confidential. Our clients expect us and our employees to keep their data secure.  However, there are times when a lawyer needs to share information with another lawyer for a number of reasons. This might be because the lawyer is checking for conflicts (conflicts affect the ability of an attorney to represent someone) or because the lawyer is changing firms. The change to the rule makes it clear that lawyers may not share any information which would “compromise the attorney-client privilege or otherwise prejudice the client.”  This was already the case, but the rule clarifies what is already the practice.

Rule 1.17 Sale of a Law Practice

Attorneys in Pennsylvania are allowed to sell their law firms when they are ready to retire. In preparing to sell a firm, a lawyer may share certain information about his or her clients with the attorney or firm seeking to buy the firm. However, the lawyer may not reveal detailed information about a specific client, unless the client consents. As with Rule 1.6, this was already the case. But this more explicit statement clarifies what is already the practice.

Rule 1.18 Duties to Prospective Clients

When someone is seeking to hire an attorney, that person is called a prospective client.  Just because a prospective client never hires a lawyer, this does not mean that confidentiality between the lawyer and the prospective client exists.  The changes to the rule clarify what exactly a prospective client is.   A prospective client is someone “who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter.”

Rule 4.4 Respect for Rights of Third Persons

Lawyers have rules about how they are supposed to respond if another lawyer sends something by accident to the wrong location. For example, if a lawyer misdirects an email, an attorney who receives it is not allowed to use the data contained within that email. One of the changes to this rule is that it now specifically includes electronic documents. Before, electronic documents were implicitly included, but not explicitly. Second, the rule now mentions metadata (hidden information in a document) and notes that metadata is included in this rule. In other words, “if the receiving lawyer knows or reasonably should know that the metadata was inadvertently send to the receiving lawyer” the lawyer must properly respond by not using the data and alerting the lawyer who sent it.

I should note that it is very important that lawyers prevent metadata from being shared. In some cases, metadata can provide valuable incites into a lawyer’s mindset, which can be harmful to his client’s case.

Rule 5.3 Responsibilities Regarding Nonlawyer Assistance

Lawyers work with many nonattorneys. Attorneys are responsible for managing their staff, making sure they understand the ethical rules, and that they obey those rules.  The changes to this rule makes clear that the firm must have “in effect measures giving reasonable assurance that the nonlawyers in the firm and nonlawyers outside the firm who work on firm matters act in a way compatible with the professional obligations of the lawyer.”  The changes serve to make the old rule clearer and to add details about working with nonlawyers outside a law firm.

Rule 5.5 Unauthorized Practice of Law; Multijurisdictional Practice Of Law

Anyone besides a lawyer is not allowed to practice law.  Further, even if someone is a lawyer, she is only allowed to practice in states/jurisdictions where she is licensed to practice. The changes to this rule make clear that if an attorney seeks to work with someone from a different jurisdiction, she must not do anything to help the other lawyer violate the ethical rules of that other jurisdiction.

Rule 7.2 Advertising

Lawyers are allowed to advertise in order to both educate about the law and aid the public in choosing representation. In the past, the rules were not clear about certain kinds of modern marketing.  The changes to the rule make it clear that online marketing is acceptable, and further, that it is ok to share the email address and website of a lawyer or law firm when conducting marketing.

Paying Others to Recommend a Lawyer

Lawyers are allowed to use paid lead generating services. But they are not allowed to have a lead generator that specifically recommends one lawyer’s services over another. In other words, the service may not, by itself, provide a recommendation for the law firm.  However, services such as Avvo and other sites where people other than the site owner are making recommendations should be fine.

Rule 7.3 Solicitation of Clients

Solicitation of a client is defined as “targeted communication initiated by the lawyer that is directed to a specific person and that offers to provide, or can reasonably be understood as offering to provide legal services.”  If a lawyer or firm does not have a prior relationship with a client, that lawyer or firm may not use real-time communication to solicit a client. This would include a phone call, instant messages and so on.  However, a potential client is allowed to initiate this kind of contact.  A lawyer or law firm is permitted to seek clients through communication to the general public, for example a billboard, website or search results.

Conclusion

The majority of the changes to the rules are simply logical extensions of what we, as lawyers, already do in our practices.  They help in areas where it was unclear what we could, or could not do, such as sharing of information during sale of a practice. If you have any questions about attorney ethics in Pennsylvania, don’t hesitate to contact me at Lowenthal & Abrams. And if you are an attorney, don’t forget to look on PBI’s website for my upcoming seminar on the new rules.