Samuel L. Bufford Re: Ethics 2000 Commission - Proposed Revisions to Rules 4.2 and 1.15 - Center for Professional Responsibility

February 7, 2000

 

Ms. Becky Stretch
American Bar Association
750 N. Lake Shore Drive
Chicago, IL 60611

Re: Ethics 2000 Commission - Proposed Revisions to Rules 4.2 and 1.15

Dear Ms. Stretch:

I am writing to convey the views of the Ethics 2000 Liaison Committee of the Los Angeles County Bar Association (LACBA) on the proposed revisions to Rules 4.2 and 1.15. Under the guidelines adopted by the LACBA Board of Trustees, Board action on these recommendations is not required.

Rule 4.2

In my committee's view, the language at the end of the rule, "by law or order," should be modified to read, "by court order or otherwise authorized by law." The reason for this suggested modification is to clarify an ambiguity as to whether authorization by court order constitutes authorization by law: my committee believes that it is.

Second, my committee agrees with Comment [6] and the first sentence of Comment [3]. My committee is divided on the remaining sentences of Comment [3]: accordingly, we offer no comment at this time.

Third, in Comment [3A] my committee recommends deleting, "in exceptional circumstances." In our view, this language imposes too high a barrier to the propriety of an attorney seeking a court order authorizing a communication with a person who is already represented by counsel. My committee believes that an attorney should be permitted to seek such an order whenever there is uncertainty as to the propriety of such a communication.

Fourth, my committee recommends that the comments to Rule 4.2 be clarified to support a client's seeking a second opinion concerning a matter in which the client is already represented by an attorney. We believe, however, that the second opinion should be authorized only if it is sought from an independent attorney, who does no already represent another party (on any side) in the matter.

Rule 1.15

On the proposed amendments to Rule 1.15(c), my committee notes that this paragraph is limited to action by an attorney "in the course of representation." In contrast, paragraphs (a) and (b) have no such limitation. We wonder whether paragraph (c) should be expanded to cover all cases where an attorney is acting as a fiduciary. After extensive discussion of this issue, however, my committee has no specific recommendation on this issue.

Thank you very much for your consideration of our comments.

Very truly yours,

 

SAMUEL L. BUFFORD

SLB:gjf
cc: LACBA Ethics 2000 Liaison Committee Members
Patty Schnegg, Esq.

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