CBA Record May-June 2022

processes in Model Rule 1.10 to allow lawyers to more readily move between firms without imputing conflicts, a direct result of the job market crash. Illinois wisely adopted that language. After the Enron scandal, the ABA and many juris dictions adopted the “Enron exception” to Rule 1.6, allowing (or in some places, mandating) lawyers to disclose otherwise confidential information in situations where a third party’s financial interests or property would be substantially injured. Illinois has this language, too. Due to the rise in technological resources, both the ABA and Illinois now boast a com ment to Rule 1.1 (Competence), instruct ing us to remain competent in technology. What to expect in the next 35 years It’s obviously hard to say exactly, but there are some signs. In the next year, we are going to see the ABA reconsider regula tion under Rule 5.5, Unauthorized Practice of Law. If there is anything the Covid-19 pandemic has taught the profession, it is that regulating lawyers based on their geo graphic footprint is falling quickly out of favor. The ABA appears ready to recon sider Rule 5.4 (Professional Independence of a Lawyer) regulation as well – with Ari zona and Utah already leading the charge. Non-lawyer firm ownership is definitely on the table for consideration. Technol ogy, of course, will continue to drive some regulatory changes. I would expect advertising rules and regulations will con tinue to be relaxed in the coming years. While I am typically not one to make long term forecasts, I am comfortable predict ing that no matter what happens, we’ll be here at the CBARecord writing about it.

PRACTICAL ETHICS BY TRISHA RICH Change is Constant T he way we regulate the profession has undergone monumental changes in the past 35 years. In honor of

8.4(g), to make it professional miscon duct to engage in conduct that a lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, eth nicity, disability, age, sexual orientation, gender identity, marital status or socio economic status in conduct related to the practice of law. Illinois has declined to adopt Model rule 8.4(g), relying instead on its similar version found at IRPC 8.4(j). In 2018, the ABA adopted substan tially rewritten and clarified rules around advertising and solicitations (Model Rules 7.1 – 7.5). The new version of the advertising rules were intended to meet a number of goals, including better com pliance with recent case law on commer cial speech and the rise and prevalence of internet-based advertising. While a handful of states have adopted slimmed down rules since 2018, Illinois has not. In August 2020, the ABA changed Model Rule 1.8(e) to loosen restrictions for attorneys who make small gifts or provide financial assistance to low-income clients. Before the 2020 amendment, the Model Rule prohibited all such transactions. Under the new rule, it is no longer prohib ited to, say, buy your pro bono client lunch while you wait at the courthouse. Illinois has not adopted this loosened language, but I am unaware of a lawyer facing con sequences for engaging in such behavior. Other important changes were driven primarily by market and other external forces. Following the Great Recession, the ABA adopted formal “screening”

the Record’s 35th year, let’s take a brief trip down memory lane and consider some of those changes. The American Bar Association’s Model Rules of Professional Conduct were adopted in 1983. Before the adoption of the Model Rules, the ABA used the 1969 Model Code of Professional Responsibil ity which had followed the 1908 Canons of Professional Ethics. In 1997, the ABA formed the Ethics 2000 Commis sion, which undertook a top-to-bottom review of the entire set of Model Rules and made significant suggestions. After two years of debate, the ABA House of Delegates approved the report in 2002, and since then, every U.S. jurisdiction has implemented some version of the ABA Model Rules (most recently California, in 2018). Illinois adopted most, but not all, of the ABA’s Model Rules in 2010. The ABA and Illinois have had a number of occasions to consider changes in our rules to address new concerns and developments in the practice of law, including significant technological devel opments (imagine yourself saying, 35 years ago, “The firm’s multifactor authentication system was down, and as a result, we were hackedby anoverseas threat actor.”). These changes have been both big and small. The most recent major changes that the ABA has made to the Model Rules occurred in 2016, 2018, and 2020. In 2016, the ABA adopted Model Rule

Trisha Rich is a litigator and legal ethicist at Holland & Knight. You can reach her at trisha.rich@hklaw. com, on LinkedIn at linkedin.com/in/trisharich, or on Twitter @_TrishRich.

Iris Martinez, Clerk of the Circuit Court, has announced a new website at www. cookcountyclerkofcourt.org to find services effectively and securely. Users are encour aged to report any issues or suggestions to CCCWebsite@cookcountycourt.com.

50 May/June 2022