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On October 22, 2013, the Supreme Court of Pennsylvania ordered the Pennsylvania Rules of Professional Conduct be amended effective in 30 days.  The order adopted the changes suggested in 43 Pa. B. 1997, Notice of Proposed Rulemaking to “address the need for changes in detection of conflicts of interest, outsourcing, technology and client development, and technology and confidentiality.”   Rules changed include RPC’s 1.0, 1.1, 1.4, 1.18, 4.4,5.3, 5.5, 7.1, 7.2, and 7.3.  (All the changes can be found here.)  Many of the changes are minor, such as the substitution of “electronic communications” for “e-mail,” and adding “information in electronic form” to types of information that need to be screened.  But some of the changes are more significant:

Retaining or Contracting With Other Lawyers- Rule 1.1, Comment

The concept of outsourcing legal services has been in the news for several years.  The amendments to RPC 1.1 include two completely new sections relating to retaining or contracting with other lawyers.  In essence, they require an attorney “reasonably believe” the services provided by the other lawyer will be competent and ethical.  The new provisions also state the lawyers “ordinarily” should consult with their clients about the scope of their respective representations.

Maintaining Competence- Rule 1.1, Comment

Much of the focus on these amendments has been on the requirement lawyers “keep abreast of changes in the law and its practice including the benefits and risks associated with relevant technology. . .”  The essence of this rule is the practicing attorney must have a modicum of understanding of technologies associated with the profession.

Confidentiality of Information and Detection of Conflicts- Rule 1.6

The amendments to Rule 1.6 include very specific language regarding the disclosures of information permitted in performing conflict checks across firms.  There is also significant new language regarding attorneys’ duty to guard against the “unauthorized access by third parties” of confidential client information.

Use of Nonlawyers Outside the Firm- Rule 5.3, Comment

There is significant new language regarding the use of Nonlawyers Outside the Firm added to the comment to Rule 5.3.  The nonlawyers include retention of “investigative or paraprofessional service, hiring a document management company to create and maintain a database for complex litigation. . .” and use of third parties for scanning or printing documents.  The amendment requires attorneys make “reasonable efforts” to ensure “the services are provided in a manner that is compatible with the lawyer’s professional obligations.”

As always, although the Rules of Professional Conduct cannot form the basis of a cause of action, professional liability and malpractice avoidance best practices include a working knowledge of the Rules of Professional Conduct.  The Rules of Professional Conduct are evolving along with the practice of law, and the practicing lawyer needs to keep up.

–Josh J.T. Byrne, Esquire