AMERICAN BAR ASSOCIATION
CENTER FOR PROFESSIONAL RESPONSIBILITY
COMMISSION ON EVALUATION OF THE RULES
OF PROFESSIONAL CONDUCT
May 15, 2001
Commission Members Present:
Chief Justice E. Norman Veasey, Chair
Lawrence J. Fox
Albert C. Harvey
Geoffrey C. Hazard, Jr.
W. Loeber Landau
Margaret C. Love
Susan R. Martyn
David T. McLaughlin
Richard E. Mulroy
Lucian T. Pera
Laurie D. Zelon
Nancy J. Moore
Carl A. Pierce
James B. Lee, House of Delegates
Seth Rosner, Center for Professional Responsibility
Susan M. Campbell
Charlotte K. Stretch
The Commission held a conference call from 2:30 to 3:50 p.m. on Tuesday, May 15, 2001.
The Commission approved the following drafts that were written pursuant to decisions made at the Commission's Charleston meeting: 1.5; 1.8; 1.9; 1.10; 1.11; 1.13; 1.15; 1.16; 3.2; 3.8; 5.1; 5.3; 5.5; 5.6; 7.2; 7.5; 8.3; and 8.4.
The Commission then addressed eight rules with issues pending.
Rule 1.2: The Commission approved the proposed change to Comment  that was posted on the listserv earlier in the day.
Rule 1.3: The Commission reviewed a proposed new comment on planning for a lawyer's death or disability. The comment was developed in conjunction with the Senior Lawyers Division originally for Rule 1.17, but is now being proposed as a new comment in Rule 1.3. Several members were concerned about the use of the word "should" in the comment. The Commission agreed with a suggestion to change the wording of the comment to note that the duty of diligence may require the lawyer to prepare a plan to prevent neglect of client matters in the event of the lawyers death or disability.
Rule 1.7: A Commission member had voiced concern on the listserv about the Reporter's Explanation for the deletion of the last sentence in Comment . The Commission agreed with a suggestion to delete the last sentence of the Reporter's Explanation.
The Commission agreed with a suggestion to delete the words after the final comma in the second sentence of Comment .
Rule 4.2: The Commission discussed the phrase "criminal defendant" in Comment  (previously ). The Commission agreed that the use of the word "defendant" is not accurate since a person is not usually considered a defendant until charges are filed. The Commission agreed to change the phrase to "the accused in a criminal matter."
The Commission requested that the Reporters be sure to note in the Reporters' Explanation that no substantive change in the rule is intended.
Rule 5.6: A member questioned the proposed change in Rule 5.6(a), which replaced "a partnership or employment agreement..." with "an agreement .... with a lawyer or a law firm... ." Some members felt that this change limited the rule in a way that was not intended by eliminating the reference to "employment agreements." Others felt that this rule was never intended to refer to employment agreements with individual clients. The Reporters referred to the approach taken in Pennsylvania, which states that a lawyer shall not participate in offering or making "a partnership, shareholders, operating, employment or other similar type of agreement that restricts the rights of a lawyer to practice after termination of the relationship.......", and does not touch on the issue of employment agreements. The Commission agreed to adopt the Pennsylvania approach.
Rule 5.4: A member raised an issue about the addition of the words "or possesses comparable managerial authority" in Rule 5.4(d)(2). The Commission agreed to adopt the Pennsylvania approach here as well (which provides that a lawyer shall not practice with an association if "a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation.") and to add a comment using a professional limited liability corporation as an example.
Rule 8.5: The Commission agreed with a suggestion to change the first sentence of Comment  to read: "The choice of law provision in this Rule applies to lawyers engaged in transnational practice, unless international law, treaties or other agreements between competent regulatory authorities in the affected jurisdictions provide otherwise."
Rule 7.2: The Commission discussed the use of the terms "legal service organization" and "legal services organization" in the Rules 1.0(g), 7.2(b) and elsewhere in the Rules. The Commission agreed that it would be better to use a different term in Rule 7.2, where the term is used to refer to a prepaid or group plan that assists clients to secure legal representation. The Commission suggested referring to a 'legal service plan' in Rule 7.2(b) and asked the Reporters to consider whether this would be an appropriate solution to the problem.
Charlotte K. Stretch