Technology, it is a-changin'

Several California ethics opinions -- both at the county and state level -- conclude that lawyers have an obligation to be aware of developments in technology and to be knowledgeable about the technology they employ. Indeed, these mirror the provisions in Comment [8] of Model Rule 1.1 which, at least to date, has not been expressly incorporated in California's Rules of Professional Conduct. Doing so, benefits both lawyers and their clients in that the former presumptively becomes increasingly efficient at providing services to the latter.

Lawyers are also well-served to stay abreast of, and anticipate, developments that are not based in technology. That likewise helps them to adapt their practice in a manner that benefits their clients, whether through compliance with regulations, increased efficiency, or both.

The recently released report from the State Bar Task Force on Access Through Innovation of Legal Services (ATILS) provides a window into what may lie ahead in the very near future for California practitioners. The 251-page document provides several recommendations. These incidentally include adoption of the aforementioned Comment [8], albeit placing it as a new Comment [1] to Rule of Professional Conduct 1.1 as a reminder that California lawyers be familiar with and competent in using technology. A few that may have some fairly significant impact on how lawyers practice are as follows.

Recommendations 2.0 and 2.1 suggest a policy permitting nonlawyers to provide specified legal advice and services in critical areas involving significant access issues. These include housing, health and social services, domestic relations, and domestic violence. The concept would not be entirely novel; Washington permits limited licensed legal technicians to provide services in areas of serious need. Because the professionals are regulated -- albeit by a body distinct from the bar -- the public remains protected. And because the scope of allowable services would relate to areas where parties are routinely without an attorney representing them, there would likely be minimal impact to the fees that licensed attorneys charge.

So, why is the potentially an issue for lawyers? Because there would be carefully defined limits to what these professionals could do, it could make sense that some of these professionals become integrated within firms that provide more complete service options. It will, therefore, be incumbent on lawyers who supervise them to understand the scope of the services that are permitted to such professionals to make sure that they do not go beyond and engage in the unauthorized practice of law, while still using such a new category of service providers to lower the overall cost of services to clients.

As other organizations, such as the Association of Professional Responsibility Lawyers (APRL), are examining potential solutions to problems created by section 5 to the Model Rules, which regulates law firms and associations, ATILS recommended a few potential modifications to Rule 5.4. These include opening up ownership and, therefore, fee-sharing in law firms to nonlawyers. The rationale for providing such an opportunity is to remove an impediment from lawyers being able to partner with those who design and implement cutting-edge technology that could increase access to legal services. But there are several limitations on the types of arrangements that would be permitted. These include that the firm could only have the purpose of providing legal services to clients, and the nonlawyers could have no power to direct or control the independent judgment of the firm's lawyers.

The report notes that there are two significant issues with such a concept. First, there is no concrete evidence that this would actually increase access to justice. Therefore, it is possible that the very purpose of the change to Rule 5.4 would never be served. Second, there is no mechanism for regulating the nonlawyer partners. That is probably significant because it seems unlikely that a person with an equity interest in a business -- including one that provides legal services -- would truly be silent about the sole activity that generates revenues.

The ATILS report also suggests considering further revisions to the advertising rules. As it notes, the ABA, responding to APRL's 2015 and 2016 reports on advertising, revised Model Rules 7.1 through 7.5 (now Rules 7.1 through 7.3) in 2018, while California had proposals for its revised Rules of Professional Conduct pending before the Supreme Court. ATILS suggested examining both the APRL reports and the revised Model Rules to consider whether California's 2018 rules as drafted provide a practical safeguard for public protection, particularly as to limitations on real-time electronic communications, which, at least according to the prevailing view, pose a lower risk of duress or coercion than do live person-to-person contacts. If modified, the rules could provide new avenues to connect lawyers with those who could use their services.

In 1685, Captain Francis Hooke wrote a letter advising of perceived danger, "A word to the wise is enough. The old proverb is, forewarned, forearmed." Whereas the circumstances here do not necessarily pose a danger, it makes sense for lawyers to consider how these recommendations could impact their practice. That way, they may plan accordingly, rather than simply react to changes following adoption.

And, if upon contemplation there are concerns, licensees will likely have at least a couple of chances to provide some feedback. Even though there are no current requests to amend legislation or the Rules of Professional Conduct, on Tuesday the bar announced a 60-comment period regarding these proposals. In situations like these, where several proposals are innovative, the profession and the general public both benefit from input, especially to the extent it offers perspectives that the task force may not yet have considered. Be sure to offer yours. The deadline to comment is Sept. 23. 