STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON
PROFESSIONAL RESPONSIBILITY AND CONDUCT
July 20, 1999
American Bar Association
Commission on the Evaluation of the
Rules of Professional Conduct
Attention: Susan Campbell
541 North Fairbanks, 14th Floor
Chicago, IL 60611
Re: Proposed changes to Model Rule 1.18 (Draft No. 2, 4/20/99)
I write on behalf of the State Bar of California's Standing Committee on Professional Responsibility and Conduct (COPRAC), whose activities are funded in part by the Foundation of the State Bar of California.
We offer the following comments on the above-referenced draft.
General. We are glad to see a rule concerning prospective clients, because this is an area where the law is not clear. We agree with the idea that when a lawyer is consulted about possible retention, the lawyer is obligated to protect information and property received in that interview, even if a lawyer-client relationship is not formed. However, we are concerned about creating a special type of prospective client "relationship." The law governing lawyers is already sufficiently complex. In lieu of that new kind of "relationship," governed by new and different legal standards, we think that Rule 1.18 should specify which duties of an attorney attach to a person who consults with the attorney but who does not actually become the attorney's client. To that end, we offer the following specific comments.
Disqualification. We think subsection (b) should be written to correspond with Rule 1.9, so that a prospective client is treated as a former client for purposes of disqualification. We think that subsection (b)(1)'s specification that screening is allowed only if the lawyer "took reasonable steps to avoid exposure than necessary to determine whether to represent the prospective client" is difficult to understand, and will be difficult to implement. As a substitute, we suggest allowing a lawyer to obtain enough information to run a conflict check without suffering any disqualification from future representation of the prospective client, so long as the prospective client is warned that the information given will not be held in confidence. Thereafter, if the attorney consults confidentially with the client, then the client should simply be treated as a former client.
Unnecessary new standards. We are concerned about analyzing conflicts by talking about whether one client has " interests materially adverse" to those of another client. Adversity and conflicts should be measured by the lawyer's duties. Otherwise, the door will be opened to issue conflicts and to conflicts analyses that will prevent attorneys from representing competitors in the same industry, because the general "interests" of competitors are generally adverse, even if they are not adverse in a particular matter. The public is not served by discouraging lawyers in our complex modern world from specializing in particular areas of law. Recognizing "interest" adversity would hit residents of small communities especially hard, because the few available lawyers would each be prohibited from representing clients with interests adverse to one another. That problem is less likely to arise when conflicts are measured by the lawyer's duties to his various clients in the matters in which he represents them.
We see two other new standards in this draft. Subsection (b) uses "materially adverse" as a standard, which is a new concept. Another new standard we see in this rule is the term "significantly harmful," for which lawyers, courts or disciplinary authorities will have no definition to work with. Again, we think it would be more helpful if Rule 1.18 used existing and well-understood standards.
We look forward to your further refinements on this important and helpful new rule.
This comment from the State Bar of California Standing Committee on Professional Responsibility and Conduct does not constitute the position of the State Bar of California or its Board of Governors. The Board of Governors is free to submit its own comment on behalf of the State Bar of California.
Harry B. Sondheim,
cc: Board of Governors
Randall Difuntorum, Esq., COPRAC Staff Counsel