By Karen Rubin
Greetings 2018! Time for some ethics trend predictions to kick off the Year of the Dog (according to the Chinese zodiac). Let it be a year in which you doggedly pursue ethical practice (ouch). No more bad puns—here’s what’s hot as we begin the year:
Law firm cyber-security
No surprise here that the top trend is data security. It’s one of the “chief concerns
” of GC’s, and for good reason: It’s not if, but when, a firm is going to experience a cyber-attack. The latest ABA report says
that 22 percent of law firms of all sizes were hit with a data breach in 2017, up from 14 percent in 2016; several of the biggest firms experienced attacks
and various kinds of disruption in the past couple years
. But small- and medium-size firms are just as vulnerable, say the data. Of course, lawyers have an ethical duty under Model Rule 1.6(c)
to take reasonable steps to safeguard the confidentiality of client data. Ethics rules also require lawyers to have the technological competence to recognize and address the problem. (See comment  to Rule 1.1
More clients are insisting
that firms establish data security policies and procedures.
The “Uber” effect—online service providers and other tech disruptors
Just as Uber disrupted an entire market segment with its ride-hailing model, online businesses like Avvo and LegalZoom have taken aim at legal services and how they are marketed. But these online types of business raise legal ethics issues, including fee-splitting, handling client funds and professional independence. (Excellent summary is here
.) Some innovative models, like the traffic-ticket-fighting site TIKD, are under fire for potential antitrust violations
and the unauthorized practice of law
. And will consumers soon be taking their legal problems to chatbots?
Will legal teams soon be using artificial intelligence
to analyze complaints and generate document drafts?
State ethics regulators have come down against Avvo-like platforms, but they are still thriving. How will the legal industry adapt? (Hint: Watch the progress of the ABA’s consideration of a revamp of the Model Rules on lawyer marketing and advertising, aimed at “bringing them into the 21st century
” and reported here
, in the Professional Responsibility Blog
Gender bias and sexual harassment in the profession
The ABA adopted Model Rule 8.4(g)
in 2016, barring lawyers from engaging in harassing or discriminatory conduct; states are now considering whether to adopt the rule into their own lawyer conduct codes. (Box score
as of 8/1/17: 1 aye, 1 nay, many studying; and some commentators raise First Amendment
concerns.) But 40 percent of women in the profession report
that they have been subjected to harassment and discrimination; and there have been several high-profile discrimination and pay-equity claims
against prominent national firms and individuals. The judiciary has been hit as well, with a prominent federal judge apologizing and retiring abruptly
after sexual harassment allegations; and 695 law professors and former clerks are now petitioning
Chief Justice John Roberts, seeking revision of judicial employee guides and support for reporting misconduct.
Women in the profession are adding their voices to #metoo
Lawyer health and wellness—mental and physical
Finally, we’d be remiss, in our first post of 2018, if we didn’t mention the personal aspect of lawyering: keeping yourself safe and sane. As a profession, more of us fight alcoholism, substance abuse, depression and anxiety than the general population, and those trends start developing in law school. The statistics
A hopeful resolve, via a new, comprehensive ABA report
, to come to grips with these systemic issues. If you made a New Year’s resolution to stop drinking or drugging, or to address mental health issues that are affecting your legal practice, every state has a lawyer assistance organization to help you. We’ve linked to the ABA’s state-by-state listing before; but here
it is again. If it helps one person, there’s no such thing as posting it too often.
Happy New Year.