FEATURE ARTICLE: Time, Rules and Reform
Author: Professor Michael H. Hoeflich, PhD, Editor-in-Chief
Legal Editor: Carrie E. Parker
This article is featured in Volume 7, Number 10 of the Legal Ethics and Malpractice Reporter, published October 30, 2026.
The last major reform of the Rules of Professional Conduct occurred more than a quarter of a century ago. Much in the world of law has changed radically since then. Law firms are undergoing massive changes financially, technologically, and even structurally, with greater lawyer mobility and, in some cases, huge earnings. A few law firms have become larger than many of their clients. Twenty-five years ago, so-called “baby boomers” were leading law firms. Some continue to do so, but younger generations, with very different ideals and values, have replaced them in many firms. This makes one wonder whether it is time for the Bar to enter a period of self-reflection and evaluation and undertake a thorough reexamination of the Rules to see if and how they need reform and updating.
The LEMR contributors would recommend attention to a few specific areas.
Lawyer Competence & Training
Over the past few years, lawyers have learned that use of AI is not a simple matter and that lawyers must acquire skills such as prompt writing and result verification. But most states’ rules of professional conduct are relatively vague about mandatory CLE and technology training. Similarly, while law schools are attempting to provide adequate training in AI skills to law students, not all law schools have the qualified teachers necessary to impart AI expertise. Much of what law students and lawyers know about AI usage is based on CLE programs, which vary in quality as well. More importantly, this situation does not seem to be changing quickly enough.
The foundation for requiring AI competence is Rule 1.1. Kansas Comment 8 to KRPC 1.1 discusses technological understanding:
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.
But this gives very little guidance to what technical competence in AI means.
In practice, what that means is that guidance for lawyers using AI comes primarily from judicial decisions and advisory opinions. However, judicial opinions have so far focused primarily on what lawyers should not do with AI, especially hallucinations rather than what lawyers must do and how to do it. Judicial opinions are also often slow to emerge and vary from court to court. Advisory opinions may be sought and received more quickly, but they are not authoritative. The same is true for private experts’ opinions.
One possible solution to this problem is for state supreme courts to issue detailed guidelines about Lawyer use of AI and, after feedback from the Bar, add provisions to the Rules of Professional Conduct that include detailed guidance as to what adequate technology training is necessary to achieve technical competence under Rule 1.1.
A related issue to supplementation of Rule 1.1 is the current inadequacy of Rule 5.1 to deal with supervision. This rule explicitly states that lawyers supervising other lawyers have a responsibility to “supervise” the work of other lawyers to ensure that the supervised lawyers are complying with the rules of professional responsibility:
(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.
(c) A lawyer shall be responsible for another lawyer’s violation of the Rules of Professional Conduct if:
(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
Under current Rules, it is unclear what is necessary to trigger supervisors’ obligations over the supervision of writing AI prompts or verifying AI produced documents. Here again a clear standard would be instructive.
Fees in the Twenty-First Century
The current rules about fees have changed little in the past several decades. The current model focuses on hourly based fees, contingent fees, in limited circumstances, and on transactional fees. The focus for most litigation and many non-litigation cases is on hourly billing. In most cases lawyers prefer hourly billing because the risk of failure is upon the clients since they will be paid whether or not the case is successful. In addition, hourly billing is easier for all involved and simple to understand. But the entire financial structure of firms who use hourly billing depends on this the notion that the more they work and can bill for that work, the more income they can earn.
AI has raised all sorts of difficulties for this model because AI can work (albeit not always well) in a fraction of the time it takes a human to do the same work. If firms can simply bill for the time the AI is used, then income may drop precipitously. The simplest answer, to raise the cost of AI use by turning it into a “profit center” runs counter to the prohibition against profiting from external services set forth in ABA Formal Opinion 93-379. Although this opinion, like all ABA ethics opinions is advisory rather than authoritative, adopting a fee structure not in compliance with the opinion is risky.
Alternatives to traditional hourly billing, often referred to as “value billing” are now being attempted by many law firms throughout the U.S. Commentators have mixed views on the ethical dangers of such fees. Certainly, given the age of current Rule 1.5, a concerted effort to revise the rule is called for to give lawyers greater clarity on billing in the “age of AI.”
Civility
Periodically lawyers become concerned that civility at the Bar has declined sufficiently to reassess whether specific lawyer conduct that does not rise to being sanctionable under the Rules of Professional Conduct should be. Some states (including Kansas) have enacted civility rules but not included them in sanctionable professional conduct rules. But virtually every state Bar has recognized the need for civility. Shelly Dryer, former president of the Missouri Bar Association, has said:
Incivility can foster a culture that decreases job satisfaction and declines the overall quality of life. I think most of us can remember when a colleague treated us with rude, hateful, or aggressive behavior, and how it made us feel. I certainly can think of times when I received a contentious comment, email, or letter and found myself being angry or upset. And if we are honest, many of us, myself included, can recall a time when we were rude, abrasive, or curt to another lawyer. It may not have even been about the case or the other lawyer but instead about something completely unrelated, like maybe receiving bad news that morning. Each of us is doing the best we can, albeit each day our best may look different.1
Unfortunately. The problem of incivility of lawyers to other lawyers, to judges and court personnel, and to media and the public does not seem to be improving. Given that non-sanctionable civility codes do not appear to work, perhaps the Bar and the judiciary might reconsider whether certain behavior needs to be prohibited such that a violation of those standards could be punished.
We do not call for broad incivility rules to be included in a revised Rules of Professional Conduct, but, rather, specific narrowly targeted rules to make sure that all lawyers and judges realize certain forms of incivility are simply not acceptable.
1https://news.mobar.org/help-through-civility
READ THE FULL ISSUE OF LEMR, Vol. 7, No. 10
About Joseph, Hollander & Craft LLC
Joseph, Hollander & Craft is a mid-size law firm representing criminal defense, civil defense, personal injury, and family law clients throughout Kansas and Missouri. From our offices in Kansas City, Lawrence, Overland Park, Topeka and Wichita, our team of 25 attorneys covers a lot of ground, both geographically and professionally.
We defend against life-changing criminal prosecutions. We protect children and property in divorce cases. We pursue relief for clients who have suffered catastrophic injuries or the death of a loved one due to the negligence of others. We fight allegations of professional misconduct against medical and legal practitioners, accountants, real estate agents, and others.
When your business, freedom, property, or career is at stake, you want the attorney standing beside you to be skilled, prepared, and relentless — Ready for Anything, come what may. At JHC, we pride ourselves on offering outstanding legal counsel and representation with the personal attention and professionalism our clients deserve. Learn more about our attorneys and their areas of practice, and locate a JHC office near you.
