What was the most important development in the legal ethics arena over the past five years? I was honored to be asked by LexBlog, the folks who provide our blog platform, to share my views on this topic on the LXBN network, which has 8,000+ blog authors. But of course, the invitation also made me think about what’s ahead for 2016 in “Ethics World.” Here are five predictions.
Continued disruptive force from all things digital
The digital age in all its manifestations will continue to exercise its disruptive, game-changing force in 2016. It will touch everything from the duty of competence in selecting cloud vendors and guarding against data breaches to knowing about the Internet of Things and how it potentially affects your clients. The ways that social media affect legal ethics will only proliferate as more authorities weigh in on discovery and litigation duties when dealing with social media as evidence. And, if the past is prologue, lawyers will inevitably continue to get into trouble on social media in many ways - some of them license-killing.
Globalization will create challenges related to firm structure
High-level legal practice will increasingly be globalized, and 2016 is sure to bring more issues and questions about forms of legal practice - vereins, in particular, a structure aimed at allowing firms based in different countries to operate under a unified branding and marketing strategy. How conflict-of-interest rules and unauthorized-practice rules will apply to these entities has been a hot issue and will continue to be in 2016. Mega-firms Fulbright & Jaworski (subs. req.) and Dentons have already faced motions to disqualify centered on structural issues, and developments are certain to be ongoing.
More decisions to come on role of in-house firm counsel and privilege issues
Should the attorney-client privilege apply when firm lawyers talk to a firm’s ethics guru about a possible mistake in handling a client’s matter? The trending answer is yes. A much-anticipated opinion from New York’s First Appellate Department will likely be issued in 2016 that will give more clarity to that jurisdiction’s lawyers, and is likely to exert influence one way or the other.
Lawyer mobility will spotlight rules on client files and property
The break-up of big firms like Dewey, Heller Ehrmann and Thelen may not be in the spotlight this coming year as they have been, but lawyer churn will persist as a fact of legal life, making it crucial to know the rules on negotiating for employment, notifying clients, transferring client files (including digital files) and duties owed to the lawyer’s soon-to-be-former firm.
The graying of the profession puts succession planning on the agenda
I’m a proud baby boomer, so I listen when scholarly commentators point to the impact of the coming “senior lawyer tsunami,” as the 77 million of us boomers age (purchase req.). The profession will continue to gray this year, resulting from a confluence of factors. Fewer lawyers will enter, as evidenced by the precipitous drop in law school entry and class sizes over the past few years, while the baby boomers, blessed with health care improvements that will extend their professional lives, will keep working - many from economic necessity. About 11 percent of U.S. lawyers in general are 65 or older, and a recent survey found that partners age 60 or older control 30 percent of revenue in U.S. law firms with 50 or more partners. Succession planning will continue to be a key issue this year as large firms grapple with the governance aspects of client transition, and small firms and solos look at rules on selling a practice. But issues of cognitive decline and how to protect clients from lawyers who should not be practicing will also be at the fore.
Stay tuned - legal practitioners at all levels and in all settings should be closely following the developments in “Ethics World” — - both expected and unexpected — and how they affect our ability to navigate in 2016.