November 30, 2011
By e-mail
ABA Commission on Ethics 20/20
natalia.vera@americanbar.org
To the ABA Commission on Ethics 20/20,
My name is Carolyn Elefant and I am an attorney with my own
practice, the Law Offices of Carolyn Elefant in Washington D.C. and
Bethesda, Maryland. In December 2002, I founded of MyShingle.com, the
longest running and most comprehensive blog on solo and small firm
practice. I am also an ethics hobbyist and although unelected, I
represent one of the voices of today’s solo and small law firm interests.
To date, I have filed extensive comments with Ethics 2020 on behalf
of solo and small firms to ensure that our interests are adequately
represented. These comments include:
• Comments on proposed Model Rule on Admissions and ABA Model
Rule 5.5 - http://tinyurl.com/68envlx (October 6, 2011)
• Comments on lawyer use of technology and confidentiality and
lawyer use of technology for client development (December 10,
2010)
http://www.americanbar.org/content/dam/aba/migrated/2011_b
uild/ethics_2020/20110124.authcheckdam.pdf and general
endorsement of Commission’s most recent iteration
(http://myshingle.com/2011/05/articles/ethics-2020/they-listened-
they-really-listened/)
In this set of comments, I address the Commission’s most recent revision to
Model Rule 5.3.
Comments by Carolyn Elefant, Re: ABA Commission on Ethics 2020
MyShingle.com Model Rule on Admissions and Model Rule 5.5
I. Overview and Summary
I raise two objections to the proposed expansion of Model Rule 5.3,
which currently governs lawyer use of non-legal services delivered by
actual people (e.g., paralegals, document reviewers and e-discovery
vendors) to encompass passive, non-legal services such as cloud
computing, summarized below:
1. Proposed Model Rule 5.3 imposes impossible obligations on
lawyers, namely, the ability to monitor and request changes to a one size
fits all service like cloud computing governed by the terms of a contract.
Whereas lawyers can make special requests of human providers – e.g.,
direct a document review company to turn a project around in two days
or assign only experienced lawyers to the matter – these types of special
requests cannot be accommodated by providers of one-size-fits all
services like cloud computing.
2. Proposed Model Rule 5.3 unfairly singles out cloud computing as
the only type of passive service governed by Model Rule 5.3. Other
passive services utilized by lawyers – bank and IOLTA trust accounts, cell
phone plans and computerized legal research – raise the exact same
concerns as use of cloud computing and have never been subject to the
same degree of oversight. Indeed, because there is no rationale for
viewing “non-legal assistance” like cloud computing services any
differently from computerized legal research or banking, proposed Model
Rule 5.3 may open the flood gates and require lawyers to scrutinize,
monitor and customize these services as well.
Proposed Model Rule 5.3 poses an obstacle and additional
uncertainty for lawyers who seek to use cloud services. Moreover, solos
and small firms are disproportionately impacted because they lack the
resources to engage in the constant level of oversight required by the
proposed rule, as well as the bargaining power to demand specific
modifications to the service provided. I discuss these objections below.
II. Discussion of Objections
Proposed Model Rule 5.3 changes the original title from
“Responsibilities Governing Non Lawyer Assistants” (which implies actual
people) to “Responsibilities Governing Non Lawyer Assistance.” Rule
5.3[3] explains that examples of “nonlawyer assistance” include “retention
of an investigative or paraprofessional service, hiring a document
management company to create and maintain a database for litigation,
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Comments by Carolyn Elefant, Re: ABA Commission on Ethics 2020
MyShingle.com Model Rule on Admissions and Model Rule 5.5
sending client documents to a third party for printing and using an
Internet-based service to store client information. Significantly, Internet-
based services for storing information or cloud computing are the only
type of passive service identified in the proposed Model Rule 5.3 – even
though cell phone service, banking services and computerized legal
research services are analogous.
With regard to lawyers’ responsibilities over “non lawyer assistance”
and services Model Rule 5.3 states that:
When using [nonlawyer] services outside the firm, the lawyer
must make reasonable efforts to ensure that the services are
provided in a manner that is compatible with the lawyer’s
professional obligations. The extent of this obligation will
depend upon the circumstances, including the education,
experience and reputation of the nonlawyer; the nature of the
services involved; the terms of any arrangements concerning
the protection of client information and the legal and ethical
environments of the jurisdictions in which the services will be
performed, particularly with regard to confidentiality. When
retaining or directing a nonlawyer outside the firm, a lawyer
should communicate directions appropriate under the
circumstances to give reasonable assurance that the
nonlawyer’s conduct is compatible with the professional
obligations of the lawyer.
As discussed below, while proposed Model Rule 5.3’s obligations are
sensible as applied to services rendered by human providers, they
are impossible to satisfy – and therefore, inherently unreasonable as
applied to passive services like cloud storage (and by analogy, cell
phone service, IOLTA bank accounts and computerized legal
research).
A. Proposed Model Rule 5.3 Imposes Obligations That Are Impossible
for Solo and Small Firm Lawyers to Meet
The purpose of Model Rule 5.3 is to ensure that lawyers do not
transfer their ongoing duty to competently represent clients in
accordance with their professional obligations. Thus, lawyers cannot
hire an investigator and turn a blind eye when he hacks into
opposing parties’ social media accounts. Rather, it is the lawyers’
duty to instruct the investigator about applicable ethics
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Comments by Carolyn Elefant, Re: ABA Commission on Ethics 2020
MyShingle.com Model Rule on Admissions and Model Rule 5.5
requirements and to supervise his performance throughout the
relationship to ensure compliance.
The same duty does not apply to other types of passive
services that lawyers procure to run their practices. When lawyers
signs up for a bank account or phone service, they are entitled to
expect and rely upon the level of service represented in the
contract. Thus, a lawyer is not required to contact Verizon instruct
the company to prohibit employees from recording phone
conversations; it is simply assumed that adequate privacy is included
as part of the contract for service. Likewise, lawyers are not required
to personally call Westlaw’s or LEXIS’ research team for information
on the amount of research performed to prepare case headnotes
but rather, can simply assume that the product provided is
adequate.
Proposed Model Rule 5.3 conveys the implication that cloud
services are second-class services – which can have anti-
competitive consequences. For example, some observers argue
that cloud services do not have the same “brand recognition” or
reputation as LEXIS and Westlaw and thus, do not deserve the same
level of trust. Well, what happens if these name brands establish
their own cloud services (as LEXIS has done with Firm Manager). Are
lawyers entitled to rely on these products with little oversight, but
apply a greater degree of scrutiny to newer companies? Perhaps
the Commission should check with the FTC before making ethics
rules contingent on a company’s reputation.
The proposed rules are also troubling because they are
impossible standards to meet. Solos and small firms do not have the
resources to watch over cloud services or communicate instructions
on a regular basis – and lack the bargaining power to require
companies to alter their contracts. Large firms can dedicate staff to
oversee contracts with outside vendors but solo and small firms
cannot – and should not be subjected to these additional burdens.
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Comments by Carolyn Elefant, Re: ABA Commission on Ethics 2020
MyShingle.com Model Rule on Admissions and Model Rule 5.5
B, Proposed Model Rule 5.3 arbitrarily singles out cloud computing for
special treatment and opens the possibility for additional restrictions
on other passive services used by lawyers such as trust accounts
and computerized legal research
Proposed Model Rule 5.3 arbitrarily targets “Internet storage
services” as the only type of passive service covered by the rule.
However, there is no logical explanation for subjecting cloud services to
the additional obligations imposed by Model Rule 5.3, while excluding
other analogous, passive services commonly used by lawyers – such as
computerized legal research, phone service and banking. Indeed, there
is even greater justification for subjecting services like LEXIS and Westlaw
to the oversight required by Model Rule 5.3 as these services “assist the
lawyer in rendering legal services to the client” far more extensively than
cloud services, since legal research represents a core function of
lawyering.
In its zeal to discourage lawyers from using the cloud, proposed
Model Rule 5.3 goes overboard and may jeopardize other services used
by lawyers. Whereas previously, lawyers could simply rely on
representations of accuracy offered computerized legal research services
like LEXIS and Westlaw, under proposed Model Rule 5.3, all lawyers – from
solos to senior partners at the nation’s largest firms – must take a more
active role in monitoring and supervising the provision of these services to
ensure that they comport with lawyers’ professional obligations. Among
other things, proposed Model Rule 5.3 will require lawyers to inquire about
the extent to which these computerized legal research providers rely on
support and assistance from lawyers trained in foreign jurisdictions (who
are treated as “nonlawyers” for purposes of ethics rules) and to review the
extent of training afforded to computerized research company staff. If a
lawyer determines that the training provided to nonlawyer personnel who
write headnotes or develop search algorithms are insufficient, Model Rule
5.3 obligates the lawyer to “communicate directions [to the nonlawyer]
appropriate under the circumstances.
In addition to overseeing the competence and training of nonlawyer
research providers and their staff under proposed Model Rule 5.3, lawyers
must continuously assess the accuracy of search results generated. To this
end, lawyers would be required to obtain from computerized research
providers information about their search algorithms, frequency of updates
to databases and reported errors in search results.
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Comments by Carolyn Elefant, Re: ABA Commission on Ethics 2020
MyShingle.com Model Rule on Admissions and Model Rule 5.5
Finally, under Model Rule 5.3 lawyers must ensure that computerized
research services protect the confidentiality of client data – which lawyers
frequently divulge when they use computerized legal research tools. For
example, let’s say that a firm is hired by a local politician to sue YouTube
for defamation. Most likely, the lawyer assigned to the research will enter
the politician’s name as the client matter, and will run searches both on
topics like “defamation and YouTube and liability” and also on the
particular politician. Or, a lawyer might use the research service to
determine whether a pharmaceutical company meets the criteria for
patenting a drug. Some computerized research providers like LEXIS own
Accurint, a service that enables lawyers to check clients’ credit records
and case history by inputting a client’s social security numbers.
In all of these examples – whether through search results or input of
a social security numbers, lawyers are entrusting computerized research
companies with confidential client information. Moreover, because
computerized research providers retain these search results, they have
many opportunities to rummage through client data – either by running
computer scans on the data collected or even by asking analysts to
review searches and try to cull those nuggets that can be monetized
through an information arbitrage business model or simply sold to identity
thieves. Because use of computerized legal research service potentially
puts confidential client information at risk, under proposed Model Rule 5.3,
lawyers must take “reasonable measures” to prevent disclosure. Such
measures might include hiring an independent auditor to review
computerized legal research services’ internal security measures or – if
warranted, to cease using them entirely and rely only on hard copy
digests available in the library to research sensitive matters.
Lawyers adopt computerized legal research services to save clients
money and improve the quality and efficiency of legal research
performed. Most lawyers would never tolerate the degree of intrusion that
proposed Model Rule 5.3 will impose on their use of computerized legal
research services. Yet, that is an unintended consequence of classifying
cloud computing as “nonlawyer assistance” over which a lawyer has
supervisory responsibilities under Model Rule 5.3.
III. Conclusion and Recommendations
Perhaps the LEXIS analogy is over the top, but it is designed to grab
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Comments by Carolyn Elefant, Re: ABA Commission on Ethics 2020
MyShingle.com Model Rule on Admissions and Model Rule 5.5
the Commission’s attention. The bottom line is that for decades, lawyers
have responsibly and ethically selected and implemented passive
services such as computerized legal research, phone service and banking
in their practices without the additional burdens of proposed Model Rule
5.3. Lawyers are expected to act prudently in selecting services best
suited for their practice – but after that, they are permitted to rely on the
service with minimal oversight and review. There is no reason to depart
from this precedent unless of course, the Commission truly does intend to
single out cloud computing and subject it to more onerous regulation to
discourage its adoption.
Therefore, I recommend that the Commission restore proposed
Model Rule 5.3 governing nonlawyer assistants to its original form, and limit
its applicability to human nonlawyer providers rather than passive
services.
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