Last week, the ABA’s Commission on Ethics 20/20 recommended a series of changes to the Association’s Model Rules of Professional Conduct that are intended to bring the Rules more in line with the realities of law practice in the 21st Century.  The recommendations are the result of the Commission’s three-year study that revealed two overarching trends in the legal profession: (1) the increasing importance of technology — particularly, electronic communications — to the performance of legal services and (2) the growing proportion of legal work that involves multiple jurisdictions. 

Particularly noteworthy is the Commission’s proposal that Model Rule 1.6 — which describes the duty to protect client confidences — be updated to make clear that a lawyer has a duty to provide “reasonable” data security measures for client information.  The Commission notes that the reasonableness of particular security measures will depend on factors such as the cost of safeguards and the sensitivity of the client information at issue.  Although Comments to the Rule currently reference the obligation to protect client information, the Commission believes that changes in technology have “so enhanced the importance of this duty that it should be identified in the black letter of Rule 1.6.”

The Commission also recommended that comments elaborating on the duty of competence (Rule 1.1) be amended to clarify that “maintaining competence” in the practice of law includes staying current on the “benefits and risks associated with relevant technology.”       

The ABA’s House of Delegates will take up the proposals at the Association’s annual meeting in August.