Volume 11, Issue 1 - October 2012

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VOLUME 11, ISSUE 1: LEAD ARTICLE

Ethical Issues and Technological Change: Institutional Responses of the ABA and UNCITRAL

By: Christopher M. Fairman*

The rapid technological innovation of the past two decades has produced a technological divide in the practice of law. Smart phones and iPads[1] are tools of the trade for many.[2] Lawyers use social media, such as blogs, social networks, and Twitter, for client development.[3] A growing number of attorneys connect to their clients through secure portals.[4]  At the same time, a recent ABA survey on use of legal technology finds that 27 percent of lawyers do not even know if their firm backs up their computers—a response made all the more alarming given that 40 percent report having had a hard-drive failure.[5] While the number of lawyers reporting that they use encryption is rising, 75 percent continue to rely on confidentiality statements for email security.[6] Use of cloud computing remains low; the chief reason given for not using the cloud is a lack of familiarity with the technology.[7]

The landscape is the same for those in the field of alternative dispute resolution (ADR). Some in the dispute resolution arena embrace technological advancements while others resist. The reaction to Online Dispute Resolution (ODR) illustrates.[8] Proponents see the potential for ODR to resolve disputes for millions worldwide who currently have no realistic forum.[9] However, many ADR professionals remain skeptical that impersonal cyberspace can meet the needs of disputants without jeopardizing the core ethical principles of ADR.[10]

Given this divide, the legal profession has dual obligations. It must help lawyers understand and use technology more effectively, while ensuring that technological innovation does not jeopardize core principles of legal ethics.[11] This summer, two different organizations grappled with how to accommodate ethical principles in light of technological change. As part of the Commission on Ethics 20/20 project, the American Bar Association (ABA) amended several provisions of the Model Rules of Professional Conduct to provide guidance to all lawyers on the use of technology.  At the same time, a working group from the United Nations Commission on International Trade Law (UNCITRAL) was busy drafting rules to create a global online dispute resolution system for cross-border, low-value, high-volume commercial transactions. An examination of these two contemporaneous efforts reveals the tension between technological innovation and core principles of legal ethics.

Changes to the ABA Model Rules

Recent technological advances certainly enable attorneys to provide more efficient legal services.[12] At the same time, use of technology presents certain risks. At its August 6, 2012 meeting, the ABA House of Delegates unanimously approved a package of proposals recommended by the Commission on Ethics 20/20 addressing the ethical duties of lawyers in light of technological change.[13] The ABA created the Commission on Ethics 20/20 to recommend ways to modernize the Model Rules of Professional Conduct due to the sweeping changes that have occurred in the practice of law since the ABA’s last comprehensive look at the Model Rules with the Ethics 2000 Commission.[14] After nearly three years of deliberation, discussion, and drafting, the Commission on Ethics 20/20 proposed changes to two specific areas impacted by the use of new technology: protecting client confidences and marketing legal services.[15]

Technology and Protecting Client Confidences

One of the objectives of the Commission on Ethics 20/20 is to develop guidance for lawyers regarding their ethical obligations to protect clients’ confidential information when using technology and to update the Model Rules of Professional Conduct to reflect the realities of a digital age.[16]  The ABA House of Delegates approved the Commission’s recommendation in this area amending the text and comments to three Model Rules and comments to two others.

One of the most significant changes is made to Model Rule 1.6 (Confidentiality of Information). A new paragraph is added as Model Rule 1.6(c), which states: “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”  New Model Rule 1.6(c) makes clear that a lawyer has an ethical duty to take reasonable measures to protect a client’s confidential information from inadvertent or unauthorized disclosure as well as from unauthorized access. While the duty is already described in several existing Comments, this existing obligation is now explicitly stated in the black letter of Model Rule 1.6.  This change was motivated by “the pervasive use of technology to store and transmit confidential client information.”[17]

To provide more guidance about how to comply with this obligation, the comments to Model Rule 1.6 are also amended. New language in Comment [16] identifies factors that lawyers should take into account in determining whether their precautions are reasonable:

The unauthorized access to, or the inadvertent or unauthorized disclosure of, information relating to the representation of a client does not constitute a violation of paragraph (c) if the lawyer has made reasonable efforts to prevent the access or disclosure. Factors to be considered in determining the reasonableness of the lawyer’s efforts include, but are not limited to, the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use).[18]

Comment [16] also now states that a client may require additional security safeguards or give informed consent to forgo security measures required by Model Rule 1.6.[19] Additionally, due to the dramatic growth in federal, state, and international laws and regulations relating to data privacy, a new sentence is added to both Comment [16] (relating to storage of confidential information)[20] and Comment [17] (relating to transmitting confidential information)[21] to make lawyers aware that this body of law may apply to them, imposing additional obligations.

The ABA also modified the text of Model Rule 4.4 (Respect for Rights of Third Persons) and its commentary. The scope of Model Rule 4.4(b), which concerns a lawyer’s obligations upon receiving inadvertently sent confidential information, is changed to encompass the kinds of information that are prone to being transmitted inadvertently in a digital age. The current language of the rule describes the receipt of “documents” containing such information. Today, information can be inadvertently disclosed in emails, flash drives, and data embedded in electronic documents (metadata). The new rule replaces the word “document” with the phrase “document or electronically stored information” to make clear that Model Rule 4.4 governs both paper documents as well as electronically stored information.[22] The comments to Model Rule 4.4 are also modified to specify that electronically stored information, broadly defined, is covered. [23]

New language in the commentary also directly addresses the problem of metadata: “Metadata in electronic documents creates an obligation under this Rule only if the receiving lawyer knows or reasonably should know that the metadata was inadvertently sent to the receiving lawyer.”[24] However, neither the new language in the Model Rule nor its commentary resolves the controversy of whether a lawyer should be permitted to look at the metadata.  ABA Formal Opinion 06-442 concludes that Model Rule 4.4 does not prohibit a lawyer from reviewing metadata;[25] other ethics opinions reach the opposite conclusion saying that lawyers should typically not be permitted to look at an opposing party’s metadata in the absence of consent or a court order.[26]  The new commentary only clarifies that if a lawyer uncovers metadata that the lawyer knows the sending lawyer did not intend to include, Model Rule 4.4(b)’s notification requirement is triggered.

The ABA also took the opportunity to define the phrase “inadvertently sent” in Comment [2] to Model Rule 4.4 to give lawyers more guidance as to when the notification requirement applies: “A document or electronically stored information is inadvertently sent when it is accidentally transmitted, such as when an email or letter is misaddressed or a document or electronically stored information is accidentally included with information that was intentionally transmitted.”[27]  Additionally, Comment [3], which states that a lawyer may opt to return an inadvertently sent document unread, is modified to include electronically stored information. Because one cannot “return” electronically stored information in the same way one can return a paper document, the comment now permits a lawyer to “delete” such information.[28]

Model Rule 1.1 has a simple command: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”[29] It is obvious that in today’s practice environment a lawyer must be able to use email and create electronic documents.[30] Comment [6] to Model Rule 1.1 already requires that a lawyer stay abreast of changes in the law and practice. To emphasize that a competent lawyer must have some awareness of basic features of technology, Comment [6] is amended by adding the phrase “including the benefits and risks of relevant technology.”[31] According to the Commission, this change does not impose any new obligations on lawyers. Rather, it serves as a “reminder to lawyers that they should remain aware of technology, including the benefits and risks associated with it, as part of a lawyer’s general ethical duty to remain competent.”[32]

The remainder of the changes adopted by the ABA in this area are minor and serve to provide general reminders of the importance of technological change. For example, Model Rule 1.0 defines various terms used throughout the Model Rules. Model Rule 1.0(k), defines “screened.”[33]  The commentary to this rule is amended to make clear that a screen protects against the sharing of firm files or other “information, including information in electronic form.”[34] Model Rule 1.0(n), defining a “writing,” is modified by changing “email” to “electronic communications.”[35] A change is also made to the commentary to Model Rule 1.4 regarding the lawyer’s duty to communicate with the client.  Comment [4] previously included the statement: “Client telephone calls should be promptly returned or acknowledged.” This sentence is deleted and replaced with the following language: “A lawyer should promptly respond to or acknowledge client communications.”[36] Although not related to a lawyer’s confidentiality obligations, the Commission recommended this change to “more accurately describes a lawyer’s obligations in light of the increasing number of ways in which clients use technology to communicate with lawyers, such as by email.”[37]

In addition to the changes to the Model Rules, the Commission on Ethics 20/20 also recommended that the ABA Center for Professional Responsibility should create a centralized user-friendly website with continuously updated and detailed information about confidentiality-related ethics issues arising from lawyers’ use of technology. The Commission concluded that a “web-based resource is critical given that rule-based guidance and ethics opinions are insufficiently nimble to address the constantly changing nature of technology and the regularly evolving security risks associated with that technology.”[38] The Commission envisions a website accessible to lawyers who may not have extensive knowledge about technology and associated ethics issues. The website would identify the key issues that lawyers should consider when using technology in their practices, such as the administrative, technical, and physical safeguards that should be used. It would include information about the latest data security standards so that lawyers could more easily determine whether the technology that they use complies with the standards. The proposed website would be regularly updated in light of new technology and changing security concerns, as well as highlight cutting-edge and more sophisticated topics.[39]

Technology and Client Acquisition

In addition to the changes concerning technology and confidential information, the ABA also amended the Model Rules to provide guidance regarding lawyers’ use of technology and client development.  One of the hallmarks of our digital age is that lawyers routinely use the Internet to disseminate information about the law and legal services and to attract new clients.  According to the Commission on Ethics 20/20, “this development has had the salutary effect of educating the public about the existence of legal rights and options, the availability of particular types of legal services and their cost, and the background of specific lawyers.”[40] To ensure that lawyers continue to provide this valuable information in a manner that is consistent with their ethical obligations, the ABA amended the text and comments to two Model Rules and the comments to three additional rules.

In 2002, the ABA adopted the recommendation of the Ethics 2000 Commission and created Model Rule 1.18, which identifies a lawyer’s duty to prospective clients.[41] Recently, the ABA Committee on Ethics and Professional Responsibility issued Formal Opinion 10-457 exploring the circumstances under which the increasing volume of electronic communications that lawyers receive might give rise to prospective lawyer-client relationships.[42] The ABA now codifies Formal Opinion 10-457 into the text and comments of Model Rule 1.18.

First, the new Model Rule 1.18 updates the definition of a “prospective client” by replacing the word “discusses” in paragraph (a) with the word “consults.”  Model Rule 1.18(a) now reads: “A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.” This change is intended to adopt the position in Formal Opinion 10-457 that a prospective relationship can arise even when an oral discussion between a lawyer and client has not taken place.

Comment [2] to Model Rule 1.18 is rewritten to provide additional guidance on when communications amount to a consultation creating a prospective lawyer-client relationship. The commentary explains that a consultation is likely to have occurred if a lawyer, either in person or through the lawyer’s advertising in any medium, specifically requests or invites the submission of information about a potential representation without clear and reasonably understandable warnings and cautionary statements that limit the lawyer’s obligations, and a person provides information in response. In contrast, a consultation does not occur if a person provides information to a lawyer in response to advertising that merely describes the lawyer’s education, experience, areas of practice, and contact information, or provides legal information of general interest.[43] This language maintains the distinction recognized in Formal Opinion 10-457.

Model Rule 1.18(b) is also changed for similar reasons by replacing the phrase “had discussions with a prospective client” with the phrase “learned information from a prospective client.”[44] Comments [4] and [5] are also changed to illustrate that the rule can be invoked by “consultation” as opposed to the former language of “an initial interview” or conversation.  Additionally, a new sentence is added to Comment [2] to clarify that no duty is owed under Model Rule 1.18 to a person who contacts a lawyer for the purpose of disqualifying the lawyer from representing an opponent.[45]

At the core of client development is Model Rule 7.2 on attorney advertising. Currently, Model Rule 7.2 prohibits a lawyer from giving anything of value for recommending the lawyer’s services.[46] However, exceptions exist permitting a lawyer to pay for the reasonable costs of advertising and usual charges for non-profit or state-qualified lawyer referral services.[47] In practice, this means that a lawyer may divide client fees with non-profit or approved referral services, but may only pay set costs of advertising programs. Prior to the rise of the Internet, this was not difficult to apply. It was permissible to pay the costs of a Yellow Pages ad or television commercial, but a lawyer could not share fees with a for-profit referral service. As the Commission on Ethics 20/20 points out, the “Internet has blurred these lines, and it is highly likely that continued technological innovation will make the lines even less clear.”[48]  The Commission explained:

For example, new marketing methods have emerged, such as those provided by Legal Match, Total Attorneys, Groupon, and Martindale-Hubbell’s Lawyers.com that do not fit neatly into existing categories. Although the particular models vary, lawyers often pay these entities a fee for each client lead that is generated. An important question in this context is whether the lead generator is “recommending” the lawyer for whom the lead is generated. If so, any payments from the lawyer would violate Rule 7.2(b). The problem is that the existing version of Model Rule 7.2 does not clearly resolve this issue.[49]

To address this issue the ABA made several changes to the comments of Model Rule 7.2.

Under Model Rule 7.2, lawyers are not permitted to pay others for recommending their legal services, unless it falls within one of the exceptions in paragraph (b).[50] Comment [5] is amended to define “recommendation” as a communication that “endorses or vouches for a lawyer’s credentials, abilities, competence, character, or other professional qualities.”[51] This change permits the use of lead generation services that are increasingly prevalent online provided that lawyers ensure that the lead generators do not engage in the kind of conduct that the Model Rule prohibits—paying lead generators who endorse or vouch for the lawyer’s credentials, abilities, competence, character, or other professional qualities. Additional language is added to Comment [5] to explain limitations placed on the use of lead generators imposed by other rules such as Model Rule 1.5 on division of fees and Model Rule 5.4 on professional independence.[52] Comment [5] also clarifies that Model Rule 7.2(b) permits lawyers to pay for “Internet-based advertisements.”[53]

Additional changes are made to the commentary of Model Rule 7.2 illustrating its applicability to the Internet. Comment [1] is amended to state that lawyers should be allowed to assist the public in “learning about” and obtaining legal services.[54] Comment [2] adds “email address” and “website” to the list of information a lawyer may disseminate to the public.[55] Comment [3], once limited to television advertising, is amended to cover “other forms of” advertising, including “the Internet, and other forms of electronic communication.”[56]

When the Internet was in its infancy, “[e]thics opinions had concluded that emails constituted a solicitation and were governed by Rule 7.3, but that less targeted forms of advertising (such as websites) were not governed by the Rule.”[57] Today this landscape is blurred. Lawyers can post information on pages of social or professional networking sites.  While these social and professional networking sites operate much like websites, lawyers can control the viewers and enter into conversations with viewers through those pages much like email. The ABA decided to address this ambiguity by adopting changes to the text and commentary of Model Rule 7.3.

Formerly titled “Direct Contact with Prospective Clients,” Model Rule 7.3 is now re-titled “Solicitation of Clients.”   A new Comment [1] now defines the term “solicitation” to mean “a targeted communication initiated by the lawyer that is directed to a specific person and that offers to provide, or can reasonably be understood as offering to provide, legal services.” The revised Comment [1] distinguishes this targeted contact from communications directed to the general public, such as an Internet banner advertisement or a website, and those that respond to a request for information or are automatically generated in an Internet search.[58] These changes clarify when a lawyer’s activities amount to a solicitation governed by Model Rule 7.3.

In a renumbered Comment [3], the ABA recognizes that technology now enables various kinds of online interactions between lawyers and the public.  Clarifying language is added to Comment [3] to make clear that lawyers do not violate paragraph (a) if they are responding to a request for information, which can occur in many settings, including online.[59] Also deleted from Comment [3] is the former reference to “autodialing” which is now unlawful in many situations.[60]

Finally, the ABA addresses a matter of terminology. With the 2002 adoption of Model Rule 1.18, the term “prospective client” now refers to a specific person who has actually shared information with a lawyer.[61] Model Rule 7.3 clearly intends to cover contacts with all possible future clients, not just those who have had some contact with lawyers and have become “prospective clients” under Model Rule 1.18. The title, text, and commentary of Model Rule 7.3 are amended to delete the now improper use of “prospective client.”[62] Additional technical amendments were made to the commentary of Model Rules 5.5,[63] 7.1,[64] and 7.2[65] to replace similar incorrect references to “prospective client.”

Significance of Changes to the Model Rules

Of course, the ABA’s Model Rules govern no jurisdictions. It will be up to the states to individually decide whether to adopt any of these specific changes into their respective ethical codes. Since nearly all jurisdictions model their ethical codes after the Model Rules, there will certainly be consideration of these rule changes and others proposed by the Commission on Ethics 20/20 by most, if not all, states in the years to come. These changes are, for the most part, light in substance and uncontroversial, which allowed for their adoption by a unanimous voice vote.[66] This unanimity, however, also underscores their importance.

The Model Rules must speak to both sides of the technological divide. To the techno-savvy lawyer, the changes to the Model Rules will be a lagging indicator of their use of technology similar to the ABA’s tardy and timid recognition of the role of lawyers in ADR that emerged from the Ethics 2000 Commission.[67] Yet those who already embrace innovation benefit most from the new cautionary language in the Model Rules and commentary.  For the Luddites on the other side, there is a clear command: All lawyers have an ethical duty to keep abreast of changes in technology and understand the effects of such changes on the practice of law. Those involved with ADR—already innovators in the legal profession—should have little difficulty embracing this new sensitivity to technological innovation.

UNCITRAL Working Group III

At the same time ABA President Carolyn Lamm was establishing the Commission on Ethics 20/20, the United States was proposing that the United Nations Commission on International Trade Law explore the subject of ODR in cross-border e-commerce transactions.[68] Following a report from the Secretariat, UNCITRAL agreed in June 2010 to establish a working group in “the field of online dispute resolution relating to cross-border e-commerce transactions, including business-to business and business-to-consumer transactions.”[69] The task was assigned to Working Group III.  In the past two years, Working Group III has been working on a draft of procedural rules for ODR in cross-border, low-value, high volume e-commerce transactions.  They plan to create additional documents outlining the substantive principles to be applied in ODR, requirements for ODR providers and neutrals, and a cross-border mechanism for enforcement.[70] While this is certainly an ambitious task, it has been described as the best opportunity in a decade “to get input from every corner of the globe on the viability of global ODR.”[71]

The Promise of a New Global ODR System

There are virtually millions of small cross-border transactions, but currently no satisfactory forum for disputes to be resolved.[72] As a practical matter, consumers have no rights in most cross-border consumer transactions. Traditional dispute resolution processes, including litigation, are inappropriate for addressing these low-value, high-volume cross-border disputes because they are too costly and time-consuming compared to the value of the transaction.[73] Unless a consumer has some form of credit card chargeback protection – which is not available in most of the world – there is likely no legal redress mechanism available.[74] Creation of a new global ODR system could have the effect of creating such rights.

On the surface, there appears to be broad support for a new global initiative. Countries around the world are seeking a new model for dealing with smaller commercial disagreements.[75]  At the same time, government resource shortages are already making it difficult for many governments to maintain or improve traditional small-claims court litigation, much less create a new global process.[76]

A new ODR system for the entire Internet also appeals to both buyers and sellers. For consumers, “a robust ODR process could help to build trust in cross-border e-commerce that in turn encourages more purchasing and higher satisfaction levels.”[77] Currently, many people avoid cross-border low value transactions because of the absence of a resolution procedure.[78] For businesses, the perception is that a well-developed dispute resolution system will mean more profit.[79] More trust and confidence among consumers should translate into more sales and more efficient ways to deal with complaints and other conflicts with the consumers.[80] Vikki Rogers, Director of the Institute of International Commercial Law at Pace Law School, explains:

It is the hope that an ODR framework would create a new level of legal protection to encourage consumers and businesses to broaden their purchasing options (or expand their markets as sellers) beyond their national boundaries.  In other words, as a U.S. consumer or vendor, I would know that if I purchase mosaic tile dinnerware directly from an online vendor in Spain and the plates arrived chipped, I wouldn’t be left with the unrealistic option of flying to Spain and filing a claim in the local court to get my money back – I could use the ODR system.[81]

It is with this vision that UNCITRAL’s Working Group III began its task.

The Progress of Working Group III

UNCITRAL’s Working Group III has completed four negotiation sessions to date.[82] The first session was in Vienna on December 13-17, 2010. It included broad discussions on the importance of cross-border ODR, types of processes, the role of neutrals, importance of confidentiality, and need for finality and expedience.[83] It concluded with a request to the Secretariat to draft a set of procedural rules for ODR.[84]

On May 23-27, 2011, the Working Group met for a second negotiation session in New York where it discussed the draft procedural rules.[85] These rules contemplated a three-stage process: initial negotiation, followed by facilitation, then arbitration.[86] The session ended with an additional request to the Secretariat to draft documents on standards for neutrals and ODR providers, substantive legal principles for resolution of disputes, and cross-border enforcement.[87] Working Group III reconvened in Vienna on November 14-18, 2011 to engage in a detailed review of the procedural rules with the express goal of being in a position to adopt procedural rules for ODR at its fourth meeting in the summer of 2012.[88] This was not to be. At its most recent meeting, Working Group III returned to New York on May 21-25, 2012.[89] Instead of adopting a set of procedural rules, the negotiations exposed fundamental differences between members of the Working Group that could potentially derail the entire project.

Party Autonomy, Fairness, and the Procedural Rules

Party autonomy is essential to an effective global ODR system.  Since there is no way to compel worldwide participation, the parties must be able to voluntarily consent. However, legal systems take different approaches to party autonomy. The U.S. has a strong policy favoring the right of parties to choose the forum, process, and law that will resolve a dispute.[90] Even with cross-border consumer transactions, the U.S. approach to party autonomy is to enforce choice of forum and choice of law provisions, even when those provisions are unilaterally dictated by the stronger party.[91] In contrast, the EU approach assumes that all relationships in which there is a weaker party, such as consumer contracts, will result in unconscionable conduct by the stronger party.[92]  As a result, in Europe there is a tendency towards complete prohibition of pre-dispute agreement on choice of forum and limitations on choice of law provisions.[93]  Because national laws vary, there is a risk that merchants will not participate in a system that differs for each buyer based on the law of the buyer’s home state.[94]

Party autonomy was central to the initial draft of Article 1 on the scope of application. The original draft was: “The Rules apply where parties to an online transaction have agreed that disputes in relation to that transaction shall be referred for settlement under the Rules[, subject to the right of the buyer to pursue other forms of redress].”[95] This formulation provides for party autonomy—both buyer and seller must opt in to the ODR system. However, even this simple provision drew concern from consumer advocates.

At the May 2012 session, much of the Working Group’s discussion centered on changing this provision. Following two days of negotiation, Article 1 now looks like this: “1. The Rules shall apply where the parties to a transaction conducted by use of electronic communications have[, [at the time of transaction] [either at the time of the transaction or after a dispute has arisen],] explicitly agreed that disputes relating to that transaction and falling within the scope of the ODR Rules shall be submitted to ODR under the Rules.”[96]  The inclusion of the bracketed options reflect concern among some members that parties should not be bound to ODR at the time of sale, but only after the dispute arises.

Another suggestion would include a specific subsection defining explicit agreement:

[“1 bis. Explicit agreement referred to in paragraph (1) above requires agreement separate from that transaction and notice in plain language to the buyer that disputes relating to the transaction and falling within the scope of the ODR Rules will be exclusively resolved through ODR proceedings under the ODR Rules.”][97]

Under this provision, if there is a pre-dispute arbitration clause that is built into procedural rules, the consumer would have a second chance to confirm that they will subject their dispute to arbitration. This compromise gives the consumer a second bite at the apple.

Other proposals present options that are even stronger in the limitation placed on party autonomy in the interest of retaining local law to protect weaker parties:

[“2. Option 1: [“The Rules shall not apply where the law of the buyer’s state of residence provides that agreements to submit a dispute within the scope of the ODR Rules are binding on the buyer only if they were made after the dispute has arisen and the buyer has not given such agreement after the dispute has arisen or confirmed such agreement which it had given at the time of the transaction.]Option 2: [“These Rules shall govern the ODR proceedings except that where any of these Rules is in conflict with a provision of the law applicable to the ODR proceedings from which the parties cannot derogate, that provision shall prevail.]Option 3: [“Nothing in these Rules overrides a rule of law intended for the protection of consumers.]][98]

Which of these bracketed options, if any, Working Group III will ultimately choose is unknown until future negotiation sessions occur. Each reflects a retreat from party autonomy in favor of accommodating national rules that restrict choice to protect weaker parties. And this is only Article 1.[99]

Proponents of party autonomy look to dispute systems design to answer the concerns of consumer advocates. They do not ignore the issue of fairness; instead they recast it in terms of dispute systems design.[100] They characterize the goal of the project as creating a fair system that is simple, efficient, effective and transparent.[101] Consequently, if the system meets these tests, then the new system would replace the need for protective provisions of national law on behalf of consumers.[102] Moreover, because the ODR proposal is designed for cross-border disputes of low value, virtually none of the consumers affected would ever resort to the courts due to the small amount in controversy.[103]

Proponents for accommodating national law to protect consumer rights are skeptical. They point to credit card chargeback and the Paypal ODR systems as two models that exist in the “payment channel” that consumers are aware of and can easily access.[104] Sellers are bound to the dispute resolution system and fund it; buyers are not bound and retain their right to proceed through litigation.[105] While these systems are apparently effective without restricting consumer rights, Working Group III has not considered them.[106] Instead, the Working Group proposal creates a totally new three-stage dispute resolution process that sits entirely outside the transaction channel.  Specifically, the Rules provide for a mandatory automated negotiation phase and if no resolution is reached, a facilitated settlement, followed by binding online arbitration process.[107]  Fairness advocates point out that buyers will be forced to bind themselves to the process losing their right to redress in the courts.[108] Ironically, since the new system lacks a cross-border enforcement mechanism, winners will have to enforce their awards back in the local courts anyway.[109]

Prospects for Success

Given the positions developing, some observers are naturally pessimistic that the Working Group will be able to succeed with its mission of creating a global ODR system. According to University of Pittsburgh School of Law Professor Ronald Brand, “[i]f no final set of procedural rules is completed at that [November 2012] meeting, it may well be time to declare the process at a standstill.”[110] Director of the Pace Institute of International Commercial Law Vikki Rogers says there is a “gap between intent and execution” leaving her “wondering whether the original objectives will truly be achieved at the end of this endeavor.”[111]  It is clear that the Working Group is of split opinion on whether the Rules should include binding arbitration and allow for pre-dispute arbitration agreements.  Whether the representatives to the fifth session in Vienna next month will find common ground remains to be seen.[112] Even after Working Group III decides how to handle the conflicting party autonomy and fairness issues, more ethical questions remain surrounding confidentiality of communications, the contours of “neutrality,” and standards for neutrals and ODR providers to identify a few.[113]

However, even if UNCITRAL fails to deliver a global ODR system, one is still possible. Several observers of Working Group III have pointed out that private industry has moved past the legal wrangling that public lawmakers are engaging in at these meetings.[114]  For example, eBay already creates a private legal system, with its own rules, that generally operates outside the framework of public laws.[115] To its credit, Working Group III has closely coordinated with a private initiative of ODR experts from academia, NGOs, and private sector.[116] This private initiative has already proposed the development of a cross-border ODR infrastructure that would interconnect existing ODR providers and enable many existing ADR centers to start offering ODR services.[117]  During the lengthy UNCITRAL public law making process, it appears that private markets will continue to lead ODR development and that the networking taking place at Working Group III facilitates this.[118]

Conclusion

For those in ADR, the summer of 2012 brought two major projects that reflect the importance of ethical issues and technological change. Wherever you place yourself on the technological divide, the changes to the ABA’s Model Rules speak to you.  The technophobes among us now have an ethical obligation to understand the risks and benefits of technological innovation. The technophiles get reminders that basic ethical duties of confidentiality and client development are not transformed by technological change.

In contrast, technological change created ODR. As the benefits of economic exchange over the Internet continue to grow, disputes inevitably arise. UNCITRAL has taken up the challenge to create a new global ODR system for low-value, high-volume cross-border transactions. Working Group III, however, is confronted with its own divide—an ethical one. When foundational ethics of dispute resolution, like fairness and party autonomy, collide, there is bound to be damage. Whether the injury will prove fatal to this worthwhile international ODR project is unknown. Regardless of its fate, future ethical questions in ADR prompted by technological change are guaranteed.


* Alumni Society Designated Professor of Law, The Ohio State University Moritz College of Law

[1] NYSBA Report of the Task Force on the Future of the Legal Profession 102-03 (2011) (“Tablets certainly have the potential, at least in the near term, to become the primary mobile work machine for many and to become a “game changer” in the world of legal technology.”).

[2] Measuring up: Highlights from the 2012 ABA Legal Technology Survey Report, YourABA (Sept. 2012), http://www.americanbar.org/newsletter/publications/youraba/201209article12.html.

[3] Id. (“According to our respondents, blogging was the most effective social media tool for client development in 2012. Of those who blogged, 39 percent reported retaining a client directly or via referral as a result. The number dropped to 17 percent for online communities/social-networking sites and 11 percent for Twitter.”); see ABA Survey Shows Growth in Lawyers’ Social Media Use, LawSites, http://www.lawsitesblog.com/2012/08/aba-survey-shows-growth-in-lawyers-social-media-use.html (Aug. 16, 2012) (“Overall, the [2012 ABA Legal Technology Survey Report] showed increases in lawyers’ blogging, use of the social networks LinkedIn and Facebook, and use of the microblogging site Twitter.”).

[4] Measuring up, supra note 2 (“The 2012 results saw a growing number of respondents report that they offer clients access to a secure client portal: 25 percent versus 20 percent in 2011.”).

[5] Id. (reporting from the 2012 ABA Legal Technology Survey Report that 27 percent of respondents did not know if their firm backed up computers and 40 percent reported having experienced a hard-drive failure).

[6] Id. (“While respondents continued to report that they rely on confidentiality statements for email security (75 percent overall), the number reporting that they use encryption jumped substantially, from 23 percent in 2011 to 33 percent in 2012.”).

[7] Id. (“Despite the hype, the adoption of cloud computing remains fairly low: Just 21 percent of respondents overall reported ever using the cloud. The No. 1 reason cited by those who have yet to use the cloud? Unfamiliarity with the technology (55 percent).”); see also NYSBA Report, supra note 1, at 99-101 (discussing cloud computing).

[8] ODR has been defined broadly as “any method by which parties attempt to resolve disputes online.” Sarah C. Cole & Kristen M. Blankley, Online Mediation: Where We Have Been, Where We Are Now, And Where We Should Be, 38 U. Toledo L. Rev. 193, 194 (2006). The term “encompasses many forms of alternative dispute resolution (“ADR”) that incorporate the use of the Internet, websites, email communications, streaming media and other information technology as part of the dispute resolution process.” ABA Task Force on E-Commerce and Alternative Dispute Resolution, Addressing Disputes in Electronic Commerce 1 (2002), available at http://www.americanbar.org/content/dam/aba/migrated/dispute/documents/FinalReport102802.authcheckdam.pdf.  UNCITRAL uses the following definition:

ODR is a means of dispute settlement which may or may not involve a binding decision being made by a third party, implying the use of online technologies to facilitate the resolution of disputes between parties. Online dispute resolution has similarities with offline conciliation and arbitration, although the information management and communication tools which may be used during all or part of the proceedings can have an impact on the methods by which disputes are resolved.

UNCITRAL, Online dispute resolution for cross-border electronic commerce transactions: draft procedural rules (Note by the Secretariat), ¶ 3, U.N. Doc. A/CN.9/WG.III/WP.105 (13 Oct. 2010), available at http://daccess-dds-ny.un.org/doc/UNDOC/LTD/V10/574/10/PDF/V1057410.pdf?OpenElement.

[9] See Rafal Morek, The Regulatory Framework for Online Dispute Resolution: A Critical View, 38 U. Tol. L. Rev. 163, 191 (2006) (“ODR has its skeptics and its enthusiasts. The skeptics say that given that ODR has not revolutionized dispute resolution yet, it is nothing more than a passing fad.”).

[10] See Susan R. Raines, Mediating in Your Pajamas: The Benefits and Challenges for ODR Practitioners, 23 Conflict Resol. Q. 359, 359 (2006); id. (“The enthusiasts see an opportunity to develop new resources to resolve conflicts more effectively, and they argue that the Internet and ODR are still in a process of institution building.”).

[11] See NYSBA Report, supra note 1, at 99 (“Given the importance of technology to the practice of law, the legal profession shares the burden of finding a way to help lawyers understand and use technology more effectively.”), 105 (noting that Internet postings on services such as Facebook, Twitter, and LinkedIn may also be subject to rules of professional responsibility for advertising), 106 (describing ways in which the use of social media can run afoul of ethical rules on confidentiality, lawyer communications, prospective clients, and conflicts).

[12] Id. at 3 (“Technology is a double-edged sword that helps lawyers to work faster and more efficiently, yet enables them to work constantly.”).

[13] See Joan C. Rogers, Ethics 20/20 Rule Changes Approved by ABA Delegates With Little Opposition, Bloomberg BNA (Aug. 15, 2012), available at http://www.bna.com/ethics-2020-rule-n12884911245/.

[14] See Press Release, ABA, ABA President Carolyn B. Lamm Creates Ethics Commission to Address Technology and Global Practice Challenges Facing U.S. Lawyers (Aug. 4, 2009), available at http://apps.americanbar.org/abanet/media/release/news_release.cfm?releaseid=730.

[15] In addition to the proposals on technology, the House of Delegates also approved proposals by the Commission on Ethics 20/20 that address the outsourcing of legal services, practice pending admission, admission by motion, disclosure of confidential information for conflicts checks. See Debra C. Weiss & James Podgers, Clean Sweep, 98 A.B.A. J. 59, 59 (Sept. 2012).

[16] Report 105A: American Bar Association Commission on Ethics 20/20 Report to the House of Delegates, at 1, available at http://www.americanbar.org/…/2012_hod_annual_meeting_105a_filed_may_2012.authcheckdam.pdf.

[17] Id. at 2.

[18] Model Rules of Prof’l Conduct R. 1.6 cmt. [16] (2012).

[19] Id. (“A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to forgo security measures that would otherwise be required by this Rule.”).

[20] Id. (“Whether a lawyer may be required to take additional steps to safeguard a client’s information in order to comply with other law, such as state and federal laws that govern data privacy or that impose notification requirements upon the loss of, or unauthorized access to, electronic information, is beyond the scope of these Rules. For a lawyer’s duties when sharing information with nonlawyers outside the lawyer’s own firm, see Rule 5.3, Comments [3]-[4].”).

[21] Id. cmt. [17] (“Whether a lawyer may be required to take additional steps in order to comply with other law, such as state and federal laws that govern data privacy, is beyond the scope of these Rules.”).

[22] Model Rules of Prof’l Conduct R. 4.4(b) (2012) (“A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.”).

[23] Id. cmt. [2] (“For purposes of this Rule, ‘‘document or electronically stored information’’ includes, in addition to paper documents, email and other forms of electronically stored information, including embedded data (commonly referred to as “metadata”), that is subject to being read or put into readable form.”).

[24] Id. cmt. [2].

[25] See ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 06-442 (2006); see also Md. St. Bar Ass’n. Comm. on Ethics, Docket No. 2007-09 (2007); Vt. State Bar Ass’n Ethics Comm., Ethics Op. 01 (2009).

[26] See, e.g., Ala. St. Bar Office of Gen. Counsel, Formal Op. 02 (2007); State Bar of Ariz. Ethics Comm., Ethics Op. 03 (2007); Fla. State Bar Prof’l Ethics Comm., Formal Op. 02 (2006); Me. Bd. of Overseers of the Bar Prof’l Ethics Comm’n, Ethics Op. 196 (2007); N.H. Bar Ass’n. Ethics Comm., Advisory Op. 4 (2008-2009); N.Y. State Bar Ass’n Comm. on Prof’l Ethics, Ethics Op. 749 at *3 (2001); NYCLA Comm. on Prof’l Ethics, Ethics Op. 738 (2008).

[27] Model Rules of Prof’l Conduct R. 4.4 cmt. [2] (2012).

[28] Id. cmt. [3] (“Some lawyers may choose to return a document or delete electronically stored information unread, for example, when the lawyer learns before receiving it that it was inadvertently sent.”). The addition of the “delete” option was the only amendment to the package of Ethics 20/20 Model Rule changes that was made by a delegate on the floor during the debate on the proposals. See Rogers, supra note 13.

[29] Model Rules of Prof’l Conduct R. 1.1 (2012).

[30] NYSBA Report, supra note 1, at 103 (“Finally, firms must recognize that perhaps no technology has transformed the daily practice of law more than e-mail, particularly now that it has become an ever-present feature of a myriad of mobile devices.”).

[31] Model Rules of Prof’l Conduct R. 1.1 cmt. [6] (2012) (“To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”).

[32] Report 105A, supra note 16, at 3.

[33] Model Rules of Prof’l Conduct R. 1.0(k) (2012) (“‘Screened’ denotes the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law.”).

[34] See id. R. 1.0 cmt. [9].

[35] Model Rules of Prof’l Conduct R. 1.0(n) (2012) (“‘Writing’ or ‘written’ denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or videorecording, and electronic communications.”).

[36] Model Rules of Prof’l Conduct R. 1.4 cmt. [4] (2012).

[37] Report 105A, supra note 16, at 2.

[38] Id. at 1.

[39] Id.

[40] Report 105B: American Bar Association Commission on Ethics 20/20 Report to the House of Delegates, at 1, available at http://www.americanbar.org/…/2012_hod_annual_meeting_105b_filed_may_2012.authcheckdam.pdf.

[41] See Elizabeth Cohen, The Less You Know, 88 A.B.A. J. 62, 62 (Dec. 2002) (“Rule 1.18 of the ABA Model Rules of Professional Conduct, adopted by the ABA House of Delegates in February 2002, is called Duties to Prospective Clients.”).

[42] ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 10-457 (2010).

[43] Model Rules of Prof’l Conduct R. 1.18 cmt. [2] (2012) (“A person becomes a prospective client by consulting with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter. Whether communications, including written, oral, or electronic communications, constitute a consultation depends on the circumstances. For example, a consultation is likely to have occurred if a lawyer, either in person or through the lawyer’s advertising in any medium, specifically requests or invites the submission of information about a potential representation without clear and reasonably understandable warnings and cautionary statements that limit the lawyer’s obligations, and a person provides information in response. See also Comment [4]. In contrast, a consultation does not occur if a person provides information to a lawyer in response to advertising that merely describes the lawyer’s education, experience, areas of practice, and contact information, or provides legal information of general interest.”).

[44] Model Rules of Prof’l Conduct R. 1.18(b) (2012) (“Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client.”).

[45] Id. cmt. [2] (“Moreover, a person who communicates with a lawyer for the purpose of disqualifying the lawyer is not a ‘prospective client.’”). This behavior is referred to as “taint shopping.” State ethics opinions and at least one state version of Rule 1.18 recognize that lawyers owe no duty under these circumstances.  See Report 105B, supra note 40, at 3.

[46] Model Rules of Prof’l Conduct R. 7.2(b) (2012).

[47] Model Rules of Prof’l Conduct R. 7.2(b)(1)-(2) (2012).

[48] Report 105B, supra 40, at 4.

[49] Id.

[50] Model Rules of Prof’l Conduct R. 7.2 cmt. [5] (2012) (“Except as permitted under paragraphs (b)(1)-(b)(4), lawyers are not permitted to pay others for recommending the lawyer’s services or for channeling professional work in a manner that violates Rule 7.3.”).

[51] Id. (“A communication contains a recommendation if it endorses or vouches for a lawyer’s credentials, abilities, competence, character, or other professional qualities.”).

[52] Id. (“Moreover, a lawyer may pay others for generating client leads, such as Internet-based client leads, as long as the lead generator does not recommend the lawyer, any payment to the lead generator is consistent with Rules 1.5(e) (division of fees) and 5.4 (professional independence of the lawyer), and the lead generator’s communications are consistent with Rule 7.1 (communications concerning a lawyer’s services). To comply with Rule 7.1, a lawyer must not pay a lead generator that states, implies, or creates a reasonable impression that it is recommending the lawyer, is making the referral without payment from the lawyer, or has analyzed a person’s legal problems when determining which lawyer should receive the referral. See also Rule 5.3 (duties of lawyers and law firms with respect to the conduct of nonlawyers); Rule 8.4(a) (duty to avoid violating the Rules through the acts of another).”).

[53] Id.

[54] Model Rules of Prof’l Conduct R. 7.2 cmt. [1] (2012) (“To assist the public in learning about and obtaining legal services, lawyers should be allowed to make known their services not only through reputation but also through organized information campaigns in the form of advertising.”).

[55] Id. cmt. [2] (“This Rule permits public dissemination of information concerning a lawyer’s name or firm name, address, email address, website, and telephone number;”).

[56] Id. cmt. [3] (“Television, the Internet, and other forms of electronic communication are now among the most powerful media for getting information to the public, particularly persons of low and moderate income; prohibiting television, Internet, and other forms of electronic advertising, therefore, would impede the flow of information about legal services to many sectors of the public.”).

[57] Report 105B, supra note 40, at 7.

[58] Model Rules of Prof’l Conduct R. 7.3 cmt. [1] (2012) (“A solicitation is a targeted communication initiated by the lawyer that is directed to a specific person and that offers to provide, or can reasonably be understood as offering to provide, legal services. In contrast, a lawyer’s communication typically does not constitute a solicitation if it is directed to the general public, such as through a billboard, an Internet banner advertisement, a website or a television commercial, or if it is in response to a request for information or is automatically generated in response to Internet searches.”).

[59] Id. cmt. [3] (“This potential for abuse inherent in direct in-person, live telephone or real-time electronic solicitation justifies its prohibition, particularly since lawyers have alternative means of conveying necessary information to those who may be in need of legal services. In particular, communications can be mailed or transmitted by email or other electronic means that do not involve real-time contact and do not violate other laws governing solicitations. These forms of communications and solicitations make it possible for the public to be informed about the need for legal services, and about the qualifications of available lawyers and law firms, without subjecting the public to direct in-person, telephone or real-time electronic persuasion that may overwhelm a person’s judgment.”).

[60] See, e.g., 47 U.S.C. 227(b).

[61] See Model Rules of Prof’l Conduct R. 1.18 (2012).

[62] See Model Rules of Prof’l Conduct R. 7.3 (Solicitation of Clients) (2012); R. 7.3(a) (deleting “from a prospective client”); R. 7.3(b) (deleting “from a prospective client”); R. 7.3(b)(1) (replacing “prospective client” with “target of the solicitation”); R. 7.3(c) (replacing “a prospective client” with “anyone”); cmt. [2] (replacing “a prospective client” with “someone” and “person”); cmt. [3] (deleting “of prospective clients” and replacing  “prospective client” with “the public”); cmt. [4] (replacing  “prospective client” with “the public” and replacing “conversations between a lawyer and a prospective client” with “contact”); cmt. [6] (replacing “prospective client” with “someone”, deleting “to a client”, and replacing  “prospective client” with “the recipient of the communication”); cmt. [7] (replacing “a prospective client” with “people who are seeking legal services for themselves”).

[63] See Model Rules of Prof’l Conduct R. 5.5 cmt. [21] (2012) (deleting “to prospective clients”).

[64] See Model Rules of Prof’l Conduct R. 7.1 cmt. [3] (2012) (replacing “a prospective client” with “the public”).

[65] See Model Rules of Prof’l Conduct R. 7.2 cmt. [3] (2012) (deleting “a prospective client” and “that is not initiated by the prospective client”; cmt. [6] (deleting “prospective clients” and also replacing “prospective clients” with “people who seek” and “the public”); cmt. [7] (replacing “prospective clients” with “the public”).

[66] See Rogers, supra note 13 (describing voting).

[67] See Christopher M. Fairman, Ethics and Collaborative Lawyering: Why Put Old Hats on New Heads?, 18 Ohio St. J. on Disp. Resol. 505, 508-12 (2003) (chronicling the small changes to the Model Rules concerning ADR that were adopted in 2002 after recommendations from the Ethics 2000 Commission).

[68] See Ronald A. Brand, Party Autonomy and Access to Justice in the UNCITRAL Online Dispute Resolution Project 4, (U. Pitt. Sch. L. Legal Studies Research Paper Series, Working Paper No. 2012-20, 2012) (forthcoming in Loyola U. Chi. Int’l L. Rev.), available at http://ssrn.com/abstract=2125214.

[69] UNCITRAL, Report of Working Group III (Online Dispute Resolution) on the work of its twenty-second session (Vienna, 13-17 December 2010), ¶ 4, U.N. DOC. A/CN.9/716, 17 (Jan. 2011), available at http://daccess-ddsny.un.org/doc/UNDOC/GEN/V11/801/48/PDF/V1180148.pdf?OpenElement.

[70] UNCITRAL Cross-border ODR, ODR.info, http://odr.info/node/36 (last visited Sept. 27, 2012) (“UNCITRAL established its working group on cross-border ODR (WGIII) in 2010. The aim of the WG is to prepare rules for the future global cross-border ODR for disputes arising from e-commerce transactions. Such rules will include ODR Rules as well as associated documents like guidelines for ODR providers and neutrals, criteria for the accreditation of ODR providers and neutrals, substantive legal principles for deciding cases and enforcement protocol.”).

[71] Posting of Colin Rule to Center for Internet and Society Blog, http://cyberlaw.stanford.edu/blog/2010/12/uncitral-odr-working-group-meeting-progress (Dec. 13, 2010, 4:23 PM).

[72] Donalee Moulton, Coming soon: a global ODR system, Law. Wkly, Apr. 13, 2012, available at http://www.lawyersweekly.ca/index.php?section=article&articleid=1637(quoting Timothy Lemay, principal legal officer with the UNCITRAL Secretariat in Vienna).

[73] Id.

[74] Posting of Vikki Rogers to ADR Prof Blog, http://www.indisputably.org/?p=3754#more-3754 (July 30, 2012).

[75] Moulton, supra note 72 (“According to a UN report on the issue, countries around the globe are looking for a consistent approach to dealing with smaller commercial disagreements — and they believe a new model is needed.”).

[76] Chris Poole, Is an ODR System Coming Soon?, JAMS ADR Blog, http://jamsadrblog.com/tag/online-dispute-resolution/ (Apr. 13, 2012) (according to Darin Thompson, legal counsel with the B.C. Ministry of the Attorney General in Victoria).

[77] Id. (quoting Thompson).

[78] Moulton, supra note 72 (according to Lemay, principal legal officer with the UNCITRAL Secretariat).

[79] Id. (“The global community certainly believes there is more profit to be made when problems can be addressed quickly and effectively.”).

[80] Id. (according to Darin Thompson, legal counsel with the B.C. Ministry of the Attorney General in Victoria).

[81] Posting of Vikki Rogers, supra note 74.

[82] For a more complete discussion of these negotiation sessions, see Brand, supra note 68 at 4-11.

[83] See UNCITRAL, Report of Working Group III (Online Dispute Resolution) on the work of its twenty-second session (Vienna, 13-17 Dec. 2010), U.N. Doc. A/CN.9/716 (17 Jan. 2011), available at http://daccess-ddsny.un.org/doc/UNDOC/GEN/V11/801/48/PDF/V1180148.pdf?OpenElement.

[84] Id. ¶ 115.

[85] UNCITRAL, Report of Working Group III (Online Dispute Resolution) on the work of its twenty-third session (New York, 23-27 May 2011), U.N. Doc. A/CN.9/721 (3 June 2011), available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/V11/834/61/PDF/V1183461.pdf?OpenElement.

[86] See id. ¶¶ 123-138.

[87] See id. ¶ 140.

[88] UNCITRAL, Report of Working Group III (Online Dispute Resolution) on the work of its twenty-fourth session (Vienna, 14-18 Nov. 2011), ¶ 14, U.N. Doc. A/CN.9/739 (21 Nov. 2011), available at http://daccess-ddsny.un.org/doc/UNDOC/GEN/V11/873/02/PDF/V1187302.pdf?OpenElement.

[89] See UNCITRAL, Report of Working Group III (Online Dispute Resolution) on the work of its twenty-fifth session (New York, 21-25 May 2012), ¶ 14, U.N. Doc. A/CN.9/744 (7 June 2012), available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/V12/540/19/PDF/V1254019.pdf?OpenElement.

[90] See Brand, supra note 68, at 10-13.

[91] See id. at 26.

[92] Id.

[93] Id.

[94] Id. at 7.

[95] UNCITRAL, Online dispute resolution for cross-border electronic commerce transactions: draft procedural rules (Note by the Secretariat), ¶ 9, U.N. Doc. A/CN.9/WG.III/WP.107 (17 Mar. 2011), available at http://daccess-dds-ny.un.org/doc/UNDOC/LTD/V11/813/11/PDF/V1181311.pdf?OpenElement.

[96] UNCITRAL, Online dispute resolution for cross-border electronic commerce transactions: draft procedural rules (Note by the Secretariat), ¶ 11, U.N. Doc. A/CN.9/WG.III/WP.117 (31 Aug. 2012), available at http://daccess-dds-ny.un.org/doc/UNDOC/LTD/V12/556/94/PDF/V1255694.pdf?OpenElement.

[97] Id.

[98] Id.

[99] See Daniel Rainey’s Blog, http://danielrainey.blogspot.com/ (May 22, 2012, 12:16 AM) (“Not to be too cynical, at the end of the day there were congratulations all around for getting redrafted language for reconsideration of two paragraphs of a document that has been discussed for over a year, concentrating on a set of issues that, in the real world, are largely moot.”).

[100] See Brand, supra note 68, at 29.

[101] Id.

[102] See id.; John Gregory, Online Dispute Resolution – an Update, Slaw, Apr. 24, 2012, http://www.slaw.ca/2012/04/24/online-dispute-resolution-an-update/ (“[B]ut states who would adopt rules to facilitate participation in such ODR must be able to see that the system is ‘simple, efficient, effective and transparent.’ Those criteria will be met if the system is fair. ‘If states find the system to meet these tests, then the system itself will replace the need for ‘protective’ rules of private international law, and will itself result in the type of consumer (and other) protection often sought by such rules of national law.’”).

[103] See Daniel Rainey’s Blog, http://danielrainey.blogspot.com/ (May 22, 2012, 4:21 PM) (noting a Working Group III delegate’s claim that 99% of the users of ODR would not be affected by retaining an avenue to court because of the low value of the dispute).

[104] Posting of Vikki Rogers, supra note 74.

[105] Id.

[106] Id. (describing effectiveness). But see Brand, supra note 68, at 3 n.5 (describing the limitations of credit card chargeback system).

[107] Posting of Vikki Rogers, supra note 74.

[108] Id.

[109] Id.

[110] See Brand, supra note 68, at 7.

[111] Posting of Vikki Rogers, supra note 74.

[112] Part of the difficulty in predicting success for either side of the disagreement on arbitration comes from underlying concerns that are irrelevant to the ODR system. Daniel Rainey, Chief of Staff for the National Mediation Board (NMB), an independent U.S. Government agency responsible for labor-management dispute resolution in the airline and railroad industries, and an observer of Working Group III explains: “I overheard a delegate complain that some language that encouraged use of the system and voluntary outcomes would, essentially, result in “changing the landscape of international arbitration.” This is revealing. This discussion here is not, at base, about ADR or ODR – it is about preserving the existing judicial and arbitral systems.” Daniel Rainey’s Blog, http://danielrainey.blogspot.com/ (May 22, 2012, 4:21 PM).

[113] See Gregory, supra note 102 (listing additional issues that must be decided by the Working Group).

[114] See Posting of Jeff Aresty to http://iboinstitute.ning.com/forum/topics/uncitral-working-group-iii-on-odr-25th session?id=6442124%3ATopic%3A9706&page=2#comments (May 22, 2012, 10:52 AM); Daniel Rainey’s Blog, http://danielrainey.blogspot.com/ (May 22, 2012, 12:16 AM).

[115] Daniel Rainey’s Blog, supra note 114.

[116] UNCITRAL Cross-border ODR, ODR.info, http://odr.info/node/36 (last visited Sept. 27, 2012).

[117] Id.

[118] See Posting of Jeff Aresty to http://iboinstitute.ning.com/forum/topics/uncitral-working-group-iii-on-odr-25th-session?id=6442124%3ATopic%3A9706&page=3#comments (May 25, 2012, 11:20 AM).

Posted in: Volume 11, Issue 1

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