ANALYSIS: What Are Lawyers Thinking About? (Ethically Speaking)

Cybersecurity, artificial intelligence, billable hours, well-being... Legal professionals have a lot on their minds all the time. But they need to balance these concerns with practicing ethically.

So what ethics topics are foremost in their minds? More than two-thirds (68%) of legal professionals recently surveyed by Bloomberg Law said they encountered “conflicts of interest” in the past year, either due to concern over an actual ethics violation or simply to stay abreast of current legal ethics developments.

The ethics topic “withdrawal from representation” came in a distant second with legal professionals, with 29% of respondents saying that they encountered it in the past year.

Here are the top five legal ethics topics making the rounds in firms and in-house.

1. Conflicts of Interest

It makes sense that conflicts of interest came in first, because conflicts checks abound in the legal profession. There are a host of American Bar Association model ethics rules that explicitly deal with conflicts because they’re a prerequisite to engaging any new client, and they’re also implicated in many other facets of attorneys’ lives (e.g., lawyers sitting on boards or serving as expert witnesses).

2. Withdrawal From Representation

Clients can be demanding, and most lawyers have at some point dreamed of just walking away from a representation. Further, the rules on withdrawing from representation can be confusing, which might be why this category came in second place.

Lawyers have to withdraw in certain circumstances, like when continued representation would require them to break the law or if they’re physically or mentally impaired. But the rules on permissive withdrawal aren’t that clear, and they require balancing the facts of the representation (unpaid fees, angry client, trial the next day, etc.). So there’s no one-size-fits-all solution.

3. Safeguarding Client Confidentiality

Advances in technology over the past two decades have made lawyers’ lives easier (think contract drafting, due diligence, and document review) but also have the potential to create more headaches for attorneys. No firm is immune from cyberattacks, and cybersecurity—and keeping client information secure— is a major concern for law firms because cyberattacks can expose client information, in violation of Model Rule 1.6. It’s no wonder then that almost one quarter of surveyed lawyers are worried about keeping client information safe.

4. Disclosure of Confidential Information

In a related vein, nearly the same percentage of respondents (22%) said that they dealt with issues relating to disclosure of confidential information in the past year. The internet has made it so easy to share information that attorneys have to make sure they’re not divulging client information when commenting on a listserv, for example. The ABA released an ethics opinion in May on the topic, essentially telling lawyers not to share information relating to a representation on a listserv—even if it’s a hypothetical—without client consent.

5. Multijurisdictional Practice

Advances in technology also make it easier to work anywhere, and the past few years have spotlighted multijurisdictional practice rules.

Cross-border practice became a big issue in 2020 when Covid-19 hit. Most lawyers had to work from home, which for many wasn’t where they were licensed. A number of states enacted measures to allow lawyers to continue working remotely without worrying about getting disciplined. The ABA is also considering changes to its multijurisdictional and unauthorized practice rule (Model Rule 5.5), which many lawyers say are overdue.

Bloomberg Law subscribers can find related content on our ABA/Bloomberg Law Lawyers’ Manual on Professional Conduct page. Information about Bloomberg Law’s surveys is available on the Surveys, Reports, and Data Analysis page.

If you’re reading this article on the Bloomberg Terminal, please run BLAW OUT <GO> to access the hyperlinked content or click here to view the web version of this article.