February 12, 1999
Professor Nancy Moore
ABA Commission on Evaluation of the
Rules of Professional Conduct
541 No. Fairbanks Street, 14th Floor
Chicago, IL 60611
Re: Comment on Rules 1.7 and 1.4
Dear Chief Justice Veasey, members of the Commission, and Professor Moore:
Please consider this letter both as a comment on draft #7 of Rule 1.7 and draft #3 of Rule 1.4, and as a public comment to the rules, as we understand they were approved in similar form for public comment on February 5.
We write in our capacity as representatives of Advisory Council members the University of San Francisco School of Law, where we both teach Legal Ethics, and the University of California, Hastings College of the Law, where we each teach Professional Responsibility. By way of further identification, we were consecutively chairs of the State Bar of California Committee on Professional Responsibility and Conduct from 1994 to 1996, and are co-authors of two books on legal ethics, Legal Ethics in the Practice of Law (Lexis Law Publishing, 1995) and The Moral Compass of the American Lawyer (Ballantine, May 1999). The views expressed in this letter are our own.
(1) We strongly endorse the Commission's refusal to limit section (a). Direct adversity should require a bright line rule.
(2) We also commend the Commission for requiring informed consent in writing. As we have previously commented (see testimony of Mr. Zitrin in May 1998), we believe the California experience with written disclosures and consents has worked exceptionally well. We are concerned, however, that the requirements of disclosure and informed consent set forth in Rule 1.4 are too narrow. We strongly urge that, at least in the vitally important area of conflicts of interest, the Commission use language similar to the breadth of California's definition of disclosure and, thus, of informed consent:
>"Disclosure" means informing the client or former client of the relevant circumstances and of the actual and reasonably foreseeable adverse consequences to the client or former client. Calif. Rule of Prof l Conduct 3-310(A)(1), emphasis added.
The current wording is, unfortunately, too vague. Leaving it to the lawyer to determine "the extent reasonably necessary" or "reasonably adequate information" is, we believe, an invitation for artful dodging of the true bases of conflict. While we like the use of the phrase "material risks," we would add this to the California language, rather than use it as a substitute.
(3) We continue to disagree with the change in (a)(2) from the "may" of the current rule to "will". While we appreciate that "may" is extremely broad, and that "will" must be read in light of the "significant risk" language, we believe that the Commission has swung the pendulum too far in a narrow direction. We suggest that at the least, the Commission consider the insertion of the phrase "is reasonably likely to" instead of "will". The risk involved should not be limited to certainties, but to any situation with a reasonable likelihood of a material limitation of duty. If the risk relates only to certainty, it becomes too easy for even the most ethical lawyer to convince himself or herself that there is no "significant risk". This language sets up both lawyer and client for the situation in which the lawyer became convinced that the risk of actual conflict was slight, though the risk there might reasonably be conflict was significant. When that risk later matures into a situation of divided loyalty, it will be too late to save the representation. Since clients can give their informed written consent in such situations, the use of the broader language is vital to protect the interests of those clients.
(4) We strongly agree with the comment made at the February 4 hearing that use of the term "conflict of interest" in the text of the rule is ill-advised. We say this for two reasons. First, we believe that analyzing the material limitation of a lawyer's loyalty is a far better way to convey the concept of conflicts of interest than the static and somewhat misleading use of the "conflict" term itself. We have always taught California lawyers by abandoning our own rule's focus on "conflicts" and teaching conflicts from a "loyalty" perspective. We have little doubt that this concept is far easier to understand.
Second, it is always more difficult to write a rule containing a phrase which has independent meaning. This phrase thus has a life of its own, one that individual lawyers have defined for themselves, despite Rule 1.7's definition. Too many lawyers will see the phrase "conflict of interest" and define it as "direct adversity," failing to appreciate that material limitations of loyalty can also be "conflicts". This is understandable, as the very phrase "conflict of interest" sounds as if the risk of impairment of loyalty is something less, not to be included.
This change is largely procedural, not substantive. We urge the Commission's reconsideration so that a phrase that carries so much baggage with it will not inadvertently be used by lawyers reading the rule -- or drafters in other states -- in ways the Commission never intended.
(5) We believe that Comment paragraph 16a should specify that while the consent of passive class members is not needed, the ordinary consent rules apply to class representatives , to avoid any ambiguity on this question.
(6) While we appreciate the desire for specificity in providing an example of a non-waivable conflict (a term we prefer to "nonconsentable"), using a 50% figure in paragraph 12 may give the impression that less than 50% is acceptable. We prefer the earlier language.
(7) We remain puzzled by the removal of Comment paragraph 11a and the reinsertion of language into Rule 1.8(i). As several commentators pointed out at the recent hearings, defining the nature of the relationships included for black letter purposes in 1.8(i) is problematic. We are also concerned that the current changes may be interpreted by lawyers as diminishing those circumstances in which such relationships that do not involve direct conflict nevertheless are covered by (a)(2).
Richard A. Zitrin Carol M. Langford