ABA Amends Model Rules of Professional Conduct to Address Changes Brought by Technology and Globalization

by Spilman Thomas & Battle, PLLC

It is undeniable that technology and globalization are changing the way lawyers practice law.  Technology has not just made people, places, and things much more accessible to us – it has impacted the way we store information and documents, the way we communicate with and advise clients, how we conduct investigations, and how we participate in discovery.  Likewise, globalization has brought with it an increasing number of legal issues that cross jurisdictional lines, and, as a result, more lawyers need to cross those lines in order to solve them.  In addition, economic forces have resulted in both newer and more experienced lawyers relocating or seeking employment outside the jurisdiction in which they were originally licensed. 

The American Bar Association (ABA) is cognizant of these changes.  In August, 2012 and February, 2013 – after a three-year study of how technology and globalization are transforming the practice of law – the ABA amended the Model Rules of Professional Conduct (Model Rules) to address the regulation of lawyers in light of these twenty-first century realities.  This article contains a summary of the most substantive changes adopted.[1]

Technology and Lawyer Competence

The ABA added language to Comment 6 of Rule 1.1: Competence to make it clear that a lawyer's duty to stay abreast of changes in the law and practice includes understanding the benefits and risks of relevant technology.See Model Rules of Prof'l Conduct 1.1 cmt 6.

Technology and Confidentiality

In response to new ways to store and disseminate information and documents, the ABA added language to Rule 1.6: Confidentiality of Information which states that a lawyer "shall make reasonable efforts to prevent the inadvertent disclosure of, or unauthorized access to, information relating to the representation of a client."  Model Rules of Prof'l Conduct 1.6.  New language added to Comment 16 identifies various factors that lawyers need to take into account when determining whether their efforts are reasonable, including the sensitivity of the information, the cost, and other factors.See Model Rules of Prof'l  Conduct 1.6 cmt 16.

Globalization and Lawyer Mobility

The ABA adopted a new Model Rule to address the increasing need for lawyers to practice outside their home jurisdictions, sometimes on very short notice, in the face of time consuming admissions processes.  Under the Model Rule for Practice Pending Admission, lawyers may practice in the new jurisdiction if:
  • They have an active license in another jurisdiction and they have been engaged in the active practice of law for three of the last five years;
  • They are not disbarred, suspended or facing discipline;
  • They did not fail the bar exam in the new jurisdiction;
  • There were not previously denied admission in the new jurisdiction; and
  • They associate with a lawyer admitted to practice in the new jurisdiction.
The new rule also outlines the procedures the lawyers must follow, including submitting an admissions application within 45 days.  See Model Rule for Practice Pending Admission.

Globalization and Confidentiality

A lawyer must identify possible conflicts of interest when exploring the possibility of joining a different firm or when firms consider a merger.  Until the new amendments, the Model Rules did not provide sufficient guidance regarding how to identify conflicts in a manner consistent with the lawyer's duty of confidentiality.  Accordingly, the ABA amended Rule 1.6: Confidentiality to provide that a lawyer may disclose discrete categories of information to the other firm in order to detect conflicts before the lawyer is hired or the two firms merge.  See Model Rules of Prof'l Conduct 1.6.  New Comments 13 and 14 state that any such disclosure should include "no more than the identity of the persons and entities involved in a matter, a brief summary of the general issues involved, and information about whether the matter has terminated."Model Rules of Prof'l Conduct 1.6 cmts.13 and 14. The amended Rule goes on to state that even these limited disclosures should not be made if they would "compromise the attorney-client privilege or otherwise prejudice the client."  See Model Rules of Prof'l Conduct 1.6.

Globalization and Pro Hac Vice Admission

There are increasing instances in which litigation in U.S. courts involves issues related to international or foreign law, and a rise in situations in which foreign entities or individuals find themselves in U.S. courts.  The pre-amendment version of Model Rule on Pro HacVice Admission did not provide judges with any guidance regarding the authority of foreign lawyers to appear pro hac vice.  Accordingly, the ABA amended the Rule to address the factors a judge should consider in determining whether to grant a foreign lawyer's application, including the legal training and experience of the foreign lawyer, the extent to which the foreign lawyer's relationship and familiarity with the client or the matter will facilitate the fair and efficient resolution of the litigation, and other factors.  See Model Rule on Pro Hac Vice Admission.  The amended Rule makes it clear that the foreign lawyer can only appear as co-counsel or in a consultant or advisory role, and that the in-state lawyer is responsible to the client and the court: (i) for the conduct of the proceeding, (ii) for independently advising the client on the substantive law and procedural issues, and (iii) for advising the client whether the in-state lawyer's judgment differs from that of the foreign lawyer.  Model Rule on Pro Hac Vice Admission.

Globalization, Unauthorized Practice of Law, and In-House Counsel

Rule 5.5 Unauthorized Practice of Law; Multijurisdictional Practice of Law generally prohibits lawyers who are not licensed in a particular jurisdiction from establishing a systematic and continuous presence in that jurisdiction for the purpose of practicing law.  Model Rule of Prof'l Conduct 5.5.  Previously, an exception permitted a U.S.-licensed attorney to serve as in-house counsel in a jurisdiction where he or she was not admitted to practice if certain conditions were met, but that exception did not apply to foreign-licensed lawyers.  Faced with an increasing number of foreign companies with substantial operations in the U.S. and U.S. companies with substantial operations abroad, the ABA extended the Rule.  Now, a foreign lawyer may serve as in-house counsel in the U.S. if certain conditions are met, with the added requirement that the foreign lawyer may not advise on U.S. law except in consultation with a U.S.-licensed lawyer.  See Model Rule of Prof'l Conduct  5.5.


These changes to the Model Rules of Professional Conduct, while not conclusory, should provide additional guidance and assistance to lawyers dealing with the changes brought by technology and globalization.  Because these issues will continue to expand, it is likely that additional changes or clarifications to the Model Rules will become necessary.  As always, it is important to consult the rules of the specific jurisdiction in which you are practicing, or seeking to practice, for any changes specific to the jurisdiction. 

[1] This article does not address every amendment to the Model Rules, only those considered by the authors to be the most substantive and relevant to defense practitioners.  For a complete list of the modifications, see ABA Commission on Ethics 20/20: Introduction and Overview (May 7, 2012) and ABA Commission on Ethics 20/20: Introduction and Overview  (February, 2013)

For more information, please contact:

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Spilman Thomas & Battle, PLLC | Attorney Advertising

Written by:

Spilman Thomas & Battle, PLLC

Spilman Thomas & Battle, PLLC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.