David Bell Re: Proposed Changes to Model Rules of Professional Conduct - Center for Professional Responsibility


American Bar Association
Commission on Evaluation of the
Rules of Professional Conduct
Attention: Susan Campbell
541 North Fairbanks, 14th Floor
Chicago, IL 60611

Re: Proposed Changes to Model Rules of Professional Conduct

Dear Commissioners:

I write this comment as the State Bar of California's representative on the ABA Advisory Council to the Ethics 2000 Commission.

The California legal ethics community is keenly interested in the work of the Ethics 2000 Commission. It desires to participate in and contribute to the Commission's rule review and amendment process. Towards this end, a "California Coordinating Committee on the ABA Ethics 2000 Commission" has been formed to help facilitate comment from the California legal ethics community into the Ethics 2000 Commission. The Coordinating Committee is made up of appointed representatives of our state, county and local legal ethics committees, including representatives from the State Bar of California Committee on Professional Responsibility and Conduct and the ethics committees of the Los Angeles County Bar Association, the Bar Association of San Francisco and the San Diego County Bar Association. The goals of the Coordinating Committee are to:

1) gather and disseminate information regarding the activities of the Ethics 2000 Commission to local legal ethics committees;

2) identify and describe consistencies and inconsistencies between current and evolving ABA Model Rules of Professional Conduct and California Rules of Professional Conduct for consideration by the Ethics 2000 Commission and California legal ethics committees;

3) survey positions taken by individual California legal ethics committees, disseminate such positions to other California legal ethics committees for consideration and, where practical, coordinate timely submission of individual comments and positions into the Ethics 2000 Commission;

4) determine if consensus positions exist among the individual California legal ethics committees and facilitate development of consensus positions through the recommendation of consensus positions to the individual California legal ethics committees for their consideration; and

5) report to the Ethics 2000 Commission regarding (a) the existence and charter of the Coordinating Committee and (b) the status of current California efforts in considering and commenting on the activities and positions of the Ethics 2000 Commission.

The principle objective of the Coordinating Committee is to have California participate as fully as possible in the ABA rule amendment exercise through submission of timely, relevant comment into the Ethics 2000 Commission. Please find attached the Coordinating Committee charter and membership roster. I believe that you will recognize many of the members' names, as they are active both here in California and on the national level.

It is anticipated that California will engage in its own rule review and amendment process following completion of the ABA rule amendment process, as done previously following the ABA's adoption of the Disciplinary Rules and the Model Rules. It is important for California to understand as clearly as possible the rationales underlying the proposed and final amendments to the Model Rules in order to be able to best consider whether California should adopt those amendments or otherwise move towards the ABA model. Likewise, it is important for the Ethics 2000 Commission to consider the views of the California legal ethics community as it amends the Model Rules. On certain ethics issues, such as confidentiality and conflicts of interest, California has heretofore taken a different approach than the ABA. The Ethics 2000 Commission will benefit from California's experience and an understanding of the rationales underlying California's rules.

In my role as the State Bar of California's representative on the ABA Advisory Council to the Ethics 2000 Commission, I have been in active communication with Ethics 2000 Commission staff, and have transmitted materials concerning California rules to them for consideration by the Commission. I commend the dedication of the ABA staff and Commission reporters and offer my continued assistance to them.

I respectfully offer one substantive comment regarding the Model Rules and the current amendment process, which is my own comment and does not constitute the position of the State Bar of California or its Board of Governors. I would urge the Commission to consider and focus the Model Rules as rules of discipline, which set minimum disciplinary standards, and resist the temptation to broaden them into rules of better practice or rules of civil application.

As disciplinary rules, the Model Rules should be constitutional, clear, efficacious, fair and not subject to arbitrary enforcement. I am sensitive to the reality of disciplinary "rule creep" into the civil arena, such as in civil disqualification for conflicts of interest, which creates pressure on disciplinary rule drafters to consider and draft to the civil application of disciplinary rules. However, I argue against succumbing to this pressure. The disciplinary rules should not attempt to and, indeed, cannot resolve the many ethics issues arising in the civil context. I therefore would resist diluting disciplinary rules by trying to stretch them too far. Although it is an ambitious and arguably laudable goal to harmonize the disciplinary and civil ethics standards, I believe this approach will produce standards that do not work well in either the disciplinary or civil arena. Let the American Law Institute set civil practice standards and resist the temptation to incorporate the ALI approach or ALI civil positions into the disciplinary Model Rules.

Thank you for this opportunity to provide comment. I request the opportunity to appear before the Commission regarding these comments at the Commission's upcoming public hearing in Los Angeles on February 4, 1999. Thank you for considering my request.

Very truly yours,

David Bell

Director, Professional Competence, Planning and Development

Attachments

cc: Members, State Bar of California Board of Governors
Steve Nissen, Executive Director, State Bar of California
Marie Moffat, Acting General Counsel, State Bar of California
Members, California Coordinating Committee on the ABA Ethics 2000 Commission

CALIFORNIA COORDINATING COMMITTEE ON THE ABA ETHICS 2000 COMMISSION

CHARTER

The purposes and functions of the California Coordinating Committee on the ABA Ethics 2000 Commission are to:

1. Gather and disseminate information regarding the activities of the ABA Ethics 2000 Commission to formalized and active California legal ethics committees, including the Ethics 2000 Commission's schedule of (a) meetings and public hearings, and (b) rules and issues under consideration (including applicable deadlines for submission of public comment)

Goal: To provide a uniform flow of information to California legal ethics committees to facilitate the submission of relevant and timely public comment into the Ethics 2000 Commission

2. Identify and describe consistencies and inconsistencies between current and evolving ABA Model Rules of Professional Conduct and California Rules of Professional Conduct for consideration by the Ethics 2000 Commission and California legal ethics committees

Goal: To promote greater shared understanding of consistencies and inconsistencies between current and evolving ABA Model Rules of Professional Conduct and California Rules of Professional Conduct

3. Survey positions taken by individual California legal ethics committees, disseminate such positions to other California legal ethics committees for consideration and, where practical, coordinate submission of individual comments and positions into the Ethics 2000 Commission

Goal: To create a communications vehicle to share the thinking of individual California legal ethics committees and, where practical, to combine individual comments into a single comment package in order to provide more organized and coherent public comment into the Ethics 2000 Commission from the California legal ethics community

4. Determine if consensus positions exist among the individual California legal ethics committees and facilitate development of consensus positions (where the Coordinating Committee determines that a particular consensus position is desirable and/or feasible) by recommending consensus positions to the individual California legal ethics committees for their consideration

Goal: To facilitate the development and submission of consensus positions, where feasible, to allow the California legal ethics community, where possible, to speak with one voice

5. Report to the Ethics 2000 Commission regarding (a) the existence and charter of the Coordinating Committee, and (b) the status of current California efforts in considering and commenting on the activities and positions of the Ethics 2000 Commission

Goal: To provide timely and coherent notice to the Ethics 2000 Commission regarding the status of consideration undertaken by the California legal ethics community

CALIFORNIA COORDINATING COMMITTEE ON THE ABA ETHICS 2000 COMMISSION

MEMBERSHIP ROSTER

(8/6/98)

State Bar of California

David M.M. Bell, Esq.
Office of Professional Comp., Plan. & Dev.
State Bar of California
180 Howard Street
San Francisco, CA 91405
(415) 538-2154 (telephone)
(415) 538-2180 (fax)
e-mail: dmbell@ix.netcom.com

State Bar of California Committee on Professional Responsibility and Conduct

Harry B. Sondheim, Esq.
16115 Northfield Street
Pacific Palisades, CA 90272
(310) 454-4667 (telephone)
(310) 230-9684 (fax)
e-mail: hbsondheim@earthlink.net

Alameda County Bar Association

Richard E. Flamm, Esq.
600 Grand Avenue #410
Oakland, CA 94610
(510) 444-3075 (telephone)
(510) 836-8927 (fax)
e-mail: rflamm@vdn.com

Bar Association of San Francisco

Mark L. Tuft, Esq.
Cooper, White & Cooper
201 California Street, 15th Floor
San Francisco, CA 91496
(415) 433-1900 (telephone)
(415) 433-5530 (fax)
e-mail: mlt1@cwclaw.com

Bevely Hills Bar Association

Diane L. Karpman, Esq.
Karpman & Associates
9200 Sunset Boulevard, PH#7
Los Angeles, CA 90067
(310) 887-3900 (telephone)
(310) 887-3901 (fax)
e-mail: karpethics@aol.com

Los Angeles County Bar Association

Hon. Samuel L. Bufford
United States Bankruptcy Court
Central District of California
255 East Temple Street, Suite 1582
Los Angeles, CA 90012
(213) 894-0992 (telephone)
(213) 894-6407 (fax)
e-mail:Samuel_Bufford@ce9.uscourts.gov

Orange County Bar Association

Larry C. Boyd, Esq.
Gibson, Dunn & Crutcher
4 Park Plaza
Irvine, CA 92714
(949) 451-3800 (telephone)
(949) 475-4625 (fax)
e-mail: lboyd@gdclaw.com

San Bernardino County Bar Association

Charles S. Doskow, Esq.
222 N. Mountain #210
Upland, CA 91786
(909) 946-1991 (telephone)
(909) 946-6684 (fax)
e-mail: dosklaw@aol.com

San Diego County Bar Association

Ross G. Simmons, Esq.
Attorney & Counselor At Law
Suite 157 The Promontory
11440 West Bernardo Court
San Diego, CA 92127
(619) 676-1668 (telephone)
(619) 676-1839 (fax)
e-mail: ross@rblaw.com

Prof. Donald Weckstein
Professor of Law
University of San Diego School of Law
5998 Alcala Park
San Diego, CA 92110
(619) 260-2339 (telephone)
(619) 260-4728 (fax)
e-mail: donaldw@acusd.edu

Ventura County Bar Association

David L. Praver, Esq.
Taylor, McCord
P.O. BOX 1477
Ventura, CA 93002
(805) 653-0608 (telephone)
(805) 653-6006 (fax)
e-mail: davidprave@aol.com

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