Here is my second attempt to analyse provisions of the new SRA Handbook.

I am prompted to think about it again because the American Bar Association’s Ethics 20/20 Commission, which is looking at whether new ways of working need a change to ethics and regulation, has this week issued proposals on a number of issues covered by the Handbook.

It is useful to compare the two approaches.

This short survey does not go into any detail, but outlines just basic differences in approach. It also asks questions of the SRA, but only because they are our local regulator in which we have an interest (and not – although it may look like that – because I assume that they have always chosen the wrong approach).

Both attempt to regulate explicitly the question of outsourcing, which is something new for codes of conduct.

The SRA approach says that you must have "taken all appropriate steps to ensure that your clients' confidential information will be protected" and you must enable the SRA to continue to monitor you and the outsourced party (including to "enter the premises of, the third party, in relation to the outsourced activities or functions").

The ABA, on the other hand, differentiates between the outsourcing of legal and other services. For legal services, it says that the lawyer should ordinarily obtain informed consent from the client.

There is a list of items to be considered before undertaking outsourcing, including the need to protect confidentiality.

As for outsourcing of non-legal services – examples given are "the retention of an investigative service, hiring a document management company to create and maintain a database for complex litigation, sending client documents to a third party for printing or scanning, and using an Internet-based service to store client information", which therefore includes cloud-computing - the ABA does not always demand informed client consent but "the lawyer or law firm ordinarily should consult with the client concerning the allocation of responsibility for monitoring as between the client and the lawyer or law firm".

There is again a list of items to be considered by the lawyer to ensure that "services are provided in a manner that is compatible with the lawyer’s professional obligations".

These are quite different approaches, although both require lawyer supervision.

In one, the SRA maintains its role, including with the outsourced party, and retains all rights of investigation. In the other, the client is more or less the regulator of the relationship through consent.

The question is whether the SRA is being too heavy-handed. Could client consent could do the job instead?

The SRA’s insistence on being able to bang down the doors of an outsourcing centre in India to demand to see documents is a little reminiscent of last week’s operation by the US Navy Seals in their hunt for Osama Bin Laden.

Another topic on which the ABA Commission has made proposals is on the impact of technology on ethics.

I do not find anything about this in the new SRA Handbook. Maybe I missed it. At any rate, since I cannot claim to have read every word of the code and commentary, I did a search with the words "technology" and "metadata" and found no references to either.

In the commentary on the basic competence required of a lawyer, the ABA proposes: "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 technology".

They also make clear, under respect for the rights of third persons, that a lawyer who receives information or material relating to the representation of the lawyer’s client and knows or reasonably should know that the information or material document was inadvertently sent shall promptly notify the sender.

The interesting thing about this new proposal is that it includes "email, and other forms of electronically stored information, including electronic documents and the data contained in those documents (commonly referred to as "metadata")".

Examples of metadata are pieces of information like who created the document, when, who amended it, and so on – often vital information in a case.

This is a hot topic in legal ethics, and the ABA is proposing to deal with it for the first time within its Model Rules of Professional Conduct.

Given that we might receive metadata without knowing anything about it, the proposals include the following: "Receipt of electronic information containing "metadata" does not, standing alone, create a duty under this Rule."

There is stimulating food for thought for the SRA in these new ideas – or maybe for the Legal Services Board, which is currently going through the process of approving the SRA Handbook.