Proposed Presentation

Testimony Of Phillip Feldman

INTRODUCTION

Good afternoon and welcome to one of the few states lacking the spirit to adopt the soon to be uniform national Rules of Professional Conduct promulgated by the American Bar Association. California's insistence on remaining outside the loop may, in part, explain why the issues it faces deal with disputed needs for over five hundred people to administer its disciplinary system.

Being a life-long fan of ABA rules, however, doesn't enable this Californian to take note of the fact that in two particulars, ABA rules have not kept pace with the times.

The two areas I will address are: "INFORMED CONSENT" and "SERVING TWO MASTERS". The proposed changes affect Rules 1.4, 1.7 and 1.9.

INFORMED CONSENT

Rule 1.4 is perhaps one of our shortest rules and covers communications between lawyers and clients. The present rule mandates that lawyer's explanations need to enable clients to make informed decisions regarding representation. Comment [2] appropriately notes that adequacy of communication is driven by circumstances of the representation and for that reason is not susceptible to further rule articulation. The proposed addition to our rule is to add a new paragraph (c) reading: "When appropriate, a lawyer shall explain the advantages and risks of alternative courses of action to the client to accomplish the above objectives."

In 1914, following Illinois precedents Justice Cardozo opined that every human being of sound mind and adult years has a right of self-determination in Schloendorff v. Society of New York Hospital (1914) 211 N.Y. 125, 105 N.E. 92. Half a century later, the concept was propelled to national interest in Cantebury v. Spence and Washington Hospital Center (DC 1972) 464 F. 2d 772. Today, it is almost universally the law of professional negligence in most jurisdictions. Almost all jurisdictions have noted that without an explanation of available alternatives and their risks and benefits, a lay person cannot make an informed choice.

Since this indeed is the law of the land, it is inconsistent for rule of behavior for lawyers to require less than that which would make a lawyer liable under each state's common law.

SERVING TWO MASTERS

Perhaps the most inconsistent statistic is the gap between lawyers subject to liability for actual or perceived conflict of interests harming clients and lawyers subject to discipline for violation of our rules. There was a time when the debate raged as to whether our rules, being "aspirational" and "professional" or "ethical" had any place in the common law. It was scarcely predictable that time alone would result in public clamor for enhanced professionalism and that court after court would more closely scrutinize just who a lawyer is serving.

There are many related issues which are already well covered by the rules and do not appear to need updating. In other words, if it's not broken, let's not fix it. The need to permit lawyers to freely change employment outweighs a dogmatic approach to conflicts and is presently well covered. The need to permit clients to choose their own advocates in litigation free of their adversaries' wish list to disqualify selected litigators is likewise presently well covered. The over-riding restriction against conflicts of interests caused by lawyer's self-dealing at the expense of a client is also presently well controlled by existing rules and circumstances.

We are left then with the conflict of interest issue which has resulted in a major rift between the public interest as manifest by attorney-client disputes and common law edicts on the one hand and our behind the times rules of professional conduct on the other. The biblical admonition against serving two masters has always been grounded in common sense. Although always driven by confidentiality and loyalty, in recent times, loyalty has come to the forefront. ( See, for example, Flatt v. Sonoma County (1994) 9 Cal 4th 275). The proposed changes are few but more than cosmetic.

In paragraph (a) of Rule 1.7 delete the word "directly".

In sub-paragraphs (a) (1) and (b) (1) delete the words "the lawyer reasonably believes the representation will" and substitute: "an independent and objective lawyer would reasonably believe the representation would"

In sub-paragraphs (a) (2) and (b) (2) delete the word "consultation." and substitute "timely, proffered consultation with an independent and objective lawyer."

In paragraph (b) delete the word "materially".

In paragraph (a) of Rule 1.9 delete the word "materially" and also "consultation." substituting therefore "timely, proffered consultation with an independent and objective lawyer."

Our present rules have built in safe harbors uniquely within the subjective state of mind of the lawyer. Words like "directly" and "materially" are not and never have been similar to "reasonably" or "logically". For that reason, they fail to set a standard susceptible to a common, publishable meaning. Likewise, a subjective standard for informed consent to a client needs to be replaced by an objective standard else, it too, remains an "escape hatch" and "safe harbor" for those who would do injustice to its intent.

Originally, it would have been inappropriate for the only good lawyer in town to turn down representation of almost all takers. Today, there are almost a million of us in our nation, who are able to serve client's needs anywhere.

In past times, the few specialists in particularly esoteric and narrow areas of the law had to service larger populations because there were so few in their field. Today, almost as soon as an article or report is published about a new sub-field competition springs up instantly.

In the past, a large firm tended to concentrate in the narrow areas of law they did best and had an economic need to hold tightly onto their turf. Today, large firms are departmentalized and highly diversified and no particular specialty or area of interest is mandatory for sustenance.

Previously, the notion of the business of law, as to clients was "the more the merrier". Nowadays, it is accepted that from a bottom line perspective, more is less.

By ascribing to an ethical constraint with such precedent history as the bible, we will enhance our image with the public and reduce our exposure to groundless or well-based claims against us. Giving credence instead of lip service to the admonition against serving two masters will likely also stem the tide of unlimited liability to strangers, third parties we never heard of, and who never pay us a nickel.

You see once we re-affirm that we can only serve our single client it would be most difficult for the courts to use some of the perhaps dozen artifices used to stretch our responsibility to third party strangers.

Thank you.

PROPOSED CHANGES TO RULES OF PROFESSIONAL CONDUCT 1.4, 1.7, AND 1.9 FOR CONSIDERATION BY THE COMMISSION ON EVALUATION OF THE RULES OF PROFESSIONAL CONDUCT "ETHICS 2000"

TEXT 1.4

Add new paragraph (c) to read: "When appropriate, a lawyer shall explain the advantages and risks of alternative courses of action to the client to accomplish the above objectives."

TEXT 1.7

In paragraph (a) delete the word "directly".

In sub-paragraphs (a) (1) and (b) (1) delete the words "the lawyer reasonably believes the representation will" and substitute: "an independent and objective lawyer would reasonably believe the representation would"

In sub-paragraphs (a) (2) and (b) (2) delete the word "consultation." and substitute "timely, proferred consultation with an independent and objective lawyer."

In paragraph (b) delete the word "materially".

TEXT 1.9

In paragraph (a) delete the word "materially" and also "consultation." substituting therefore "timely, proferred consultation with an independent and objective lawyer."

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