The Inaugural MBI Symposium’s twenty-six participants highlight many important developments and challenges caused by MJP and new technologies. Their assessments and suggestions provide a helpful roadmap for lawyers and regulators to negotiate the increasingly complex, fast-paced, and ethically risky landscape for delivering legal services. Several panelists suggested regulatory reforms that range from the creation of a regulatory framework for lawyers engaged in crossborder practice to the creation of standards for the supervision of offshore outsourced legal services268 and the mining of metadata. Some of the panelists’ suggestions and reforms are especially important given the “high [financial] stakes” involved in the international legal services market, where an almost irresistible siren promises to lure more lawyers, who will run the risk of crashing on the shoals of an increasingly fragmented regulatory framework.
The increase in MJP, especially in a more globalized setting, and the risks attending new technologies highlight the need for a more unified and collaborative approach to professional regulation. The ABA’s creation of the 20/20 Commission represents a timely and significant response by the organized bar to these developments. The profession needs to better educate lawyers about developments involving the globalization of the legal services market and their ethical significance. Education is the key to alerting lawyers to outside regulation by government agencies and others that may threaten traditional values and practices in the delivery of legal services. Simply put, it is in the profession’s self-interest to remain informed of outside regulation that may limit counsel’s effectiveness in representing clients.
If the profession fails to rise to the challenges the panelists have highlighted, its inaction may produce unintended consequences, including encouraging others outside the profession to take action that may affect lawyers negatively. For example, the government may enter into an international trade agreement that limits the scope of the attorney-client privilege as it is understood in the United States. Currently, there is legislation in the United States Senate preventing corporations and limited liability companies from engaging in money laundering and the financing of terrorism and includes lawyers within its scope. The Incorporation Transparency and Law Enforcement Assistance Act would, among other things, enable the Treasury Department “to impose suspicious-activity report requirements upon lawyers.”
MJP and new technologies are changing traditional notions of how lawyers work and how they are viewed. It is much more common today for lawyers to represent clients whom they have never personally met or to routinely outsource work offshore to lawyers. Lawyers need to be ever mindful of the ethical considerations involved in cross-border practice and the use of new technologies.
Devising and implementing new regulatory reforms promises to be difficult and costly. The process will require an ongoing educational effort concerning the increase in MJP and new technologies and their effect on practice. Law schools and the ABA Center for Professional Responsibility should collaborate in taking the lead in these educational endeavors.
Akron Law Review
John Sahl, Foreword: The New Era- Quo Vadis?, 43 Akron Law Review 641 (2010).