Written Testimony of Richard Zitrin

1. Requiring written conflicts waivers under Rule 1.7, and written fee agreements for all but de minimus matters.

2. Reinstituting the use of specific language from the Preamble of the Model Code.

3. Passage of a rule prohibiting lawyers from participating in secret settlements that would harm the public health and safety (suggested rule enclosed).

4. Revision of the phrase " false statement of material fact or law" in rules 3.3 and 4.1.

5. Requiring mandatory pro bono publico work.

6. Passage of a rule to clarify the duties of an insurance defense lawyer where conflicts occur between insurer and insured.

7. Passage of a rule directly addressing the ethics of representing a class in a class action case, utilizing existing case law.

To be sure, there are other issues that should be addressed. I have read the comments of my USF colleague and co-author Carol M. Langford and concur with them. Other input will offer other valuable suggestions for change. These issues are ones in which I have a particular personal interest.

 

1. Requiring written conflicts waivers under Rule 1.7, and written fee agreements for all but de minimus matters.

California has had both these requirements. They work well. Whatever problems California has with its convoluted conflicts rule, its saving grace is that disclosures must be in writing, and most disclosures require written consents. Between 1989 and 1992, all disclosures required consents, a better solution. Similarly, by statute, all contingency fee agreements and all other fee agreements for services over $1000 with clients other than corporations must also be in writing. Many in California believe that the corporate distinction should be ended, and that the statute should apply to all. (Many closely held corporations have no more legal sophistication than most individuals.)

There is simply no longer any excuse for not requiring lawyers to document these matters in writing. We are a documenting profession. Every lawyer knows what it means to "make a record". And yet when it comes to their own record-keeping, too many lawyers keep those to whom they owe fiduciary duties in the dark. Requiring written fee contracts and conflict waivers, in this age of computers, is a small intrusion on a lawyer's time, and a great boon to clients. There is no excuse not to do it. In addition to potential discipline, the penalty for the failure to have written conflicts letters may be a lawsuit. The failure to have a written fee contract in California is that the contract is voidable at the election of the client, in which case the lawyer gets only a "reasonable" fee. What constitutes a reasonable fee is a triable issue of fact.

In many respects I believe the ABA rules are far more clear than California. But this is one instance in which the ABA should borrow from California's book.

 

2. Reinstituting the use of specific language from the Preamble of the Model Code.

This Spring, two of my students, in a presentation in my ethics class, quoted the below language. After first stating that the ethics rules are the "standards by which to judge the transgressor", it continues:

"Each lawyer must find within his own conscience the touchstone against which to test the extent to which his actions should rise above minimum standards."

I didn't realize at first that this language came from the Preamble to the Model Code, and that nothing in the Rules' preamble comes close to matching it.

All of us who teach ethics or deal with it professionally face the serious issue of how our morality interrelates with our ethical obligations. Too much of that is lost on our students who see black letter law (without ethical considerations, as in the old code), standardized tests of necessarily narrow scope (though, thankfully, the scope will widen next year), and ethics rules that are viewed as minimum requirements for what you can "get away with."

Being ethical and the phrase "get away with" should never appear in the same sentence, or be in the same thought formed by a student. Reinstituting this sentence from the Code's preamble would help.

 

3. Passage of a rule prohibiting lawyers from participating in secret settlements that would harm the public health and safety.

First, the reason for such a rule. Lawyers, both defense and plaintiffs' attorneys, in their efforts to further their clients' interests within the bounds of the law, often find themselves engaged in secret settlements. When these secrets harm the public, however, the public interest in learning of such dangers outweighs any advantage in settling a single case. Even in those states that have "sunshine" laws, lawyers sometimes argue that their case is the exception that should be sealed. This must change.

This is a more complicated issue than articulated here. It forms an entire chapter of Ms. Langford's and my new book. I spoke at Hofstra last month and proposed this rule, and will be addressing it again during a plenary session in Montreal. I hope that the diverse panel in Montreal will advance the discussion of what I feel is a crucial issue.

Here is the proposed rule in its current (first draft) formulation. I suggest it as an amendment to Rule 3.2, though it could go in other places. The italicized portions reflect my revisions.

RULE 3.2 EXPEDITING LITIGATION AND LIMITATIONS

(A) A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.

(B) A lawyer shall not participate in offering or making an agreement, whether in connection with a lawsuit or otherwise, to prevent or restrict the availability to the public of information that the lawyer reasonably believes directly concerns a substantial danger to the public health or safety, or to the health or safety of any particular individual(s).

Comment

1. Dilatory practices bring the administration of justice into disrepute. Delay should not be indulged merely for the convenience of the advocates, or for the purpose of frustrating an opposing party's attempt to obtain rightful redress or repose. It is not a justification that similar conduct is often tolerated by the bench and bar. The question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay. Realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client.

2. Some settlements have been facilitated by agreements to limit the public's access to information obtained both by investigation and through the discovery process. However, the public's interest in being free from substantial dangers to health and safety requires that no agreement that prevents disclosure to the public of information that directly affects that health and safety may be permitted. This includes agreements or stipulations to protective orders that would prevent the disclosure of such information. It also precludes a lawyer seeking discovery from concurring in efforts to seek such orders where the discovery sought is reasonably likely to include information covered by subsection (B) of the rule. However, in the event a court enters a lawful and final protective order without the parties' agreement thereto, subsection (B) shall not require the disclosure of the information subject to that order.

3. Subsection (B) does not require the disclosure of the amount of any settlement. Further, in the event of a danger to any particular individual(s) under Subsection (B), the rule is intended to require only that the availability of information about the danger not be restricted from any persons reasonably likely to be affected, and from any governmental regulatory or oversight agencies that would have a substantial interest in that danger. In such instances, the rule is not intended to limit disclosure to persons not affected by the dangers.

Drafter's (RAZ's) Note:

The language in the first phrase of part (B) is taken from that used in Rule 5.6, on restricting a lawyer's practice. The language "reasonably believes" parallels that used in Rule 1.6. The use of the phrase "substantial danger to the public health or safety," rather than the more restrictive language of Rule 1.6 ("imminent death or substantial bodily harm") is used here because the matters disclosed in the discovery process are not ordinarily protected by confidentiality under Rule 1.6, and also because the use of the term "imminent" is not consistent with the practical exigencies of dangers which may be inevitable but have a longer than imminent incubation period.

Model Code Comparison

DR 7-101(A)(1) stated that a lawyer does not violate the duty to represent a client zealously "by being punctual in fulfilling all professional commitments." DR 7-102(A)(1) provided that a lawyer "shall not . . . file a suit, assert a position, conduct a defense [or] delay a trial . . . when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another."

 

4. Revision of the phrase "false statement of material fact or law" in rules 3.3 and 4.1.

Rule 3.3(a)(1) prohibits making a "false statement of material fact or law" to a tribunal. Rule 4.1(a)(1) prohibits making the same material misstatement to a third person. Both these rules present problems.

These rules do more to create debate about what is "material" than to give guidance. These rules should be broadened to make it clear that no deception by lawyers is permitted, unless specifically excepted. One California rule states it clearly when it comes to dealing with courts: lawyers must always use "means only as are consistent with truth," and never behave falsely, whether by statement or "artifice." (Calif. Bus. & Prof. Code '6068(d).) Exceptions should be specific. For instance, it is not untruthful to test the prosecution's proof in a criminal case, nor to refuse to be candid with a court when to do so would violate the 5th and 6th amendment rights of the criminal defendant.

Rule 3.3: Too often, the tricks and trial devices used in the courtroom relate to immaterial facts that nevertheless have a material effect on the adjudicatory proceeding. (Cf. Counsel Connect Trial Ethics Seminar, 1996, which I moderated; and Zitrin & Langford, Legal Ethics in the Practice of Law, Lexis Law Publishing 1995, Chapter 16, in which many such instances were described and discussed. ) Perhaps the most famous example is the Chicago lawyer who placed an employee in the courtroom to make friendly small-talk with the plaintiff, a bereaved husband in a wrongful death case, making it appear to the jury that an intimate relationship existed between them.

While this action might violate another rule -- improper communication with a represented party on the subject matter of the representation -- it is just one of many examples. The point remains that Rule 3.3 should be changed to emphasize the effect of the false statement rather than its materiality, at least during the trial of a case.

Rule 4.1: The principal problem here is with negotiations. Comment 2, exempting from materiality "estimates of price or value ... and a party's intentions as to an acceptable settlement" is simply a false fix. These values and intentions are the most material matters in negotiations. Rather than treating them in this way, the rule should honestly exempt them despite their materiality, because of the nature of the negotiation process.

5. REQUIRING mandatory pro bono publico work.

Former President Carter was close to the truth when he said, in 1977, that "Ninety percent of our lawyers serve ten percent of our people. We are over-lawyered and under-represented." Yet that is still true today. If each law firm was required to spend 40 hours a year per lawyer to serve the needs of people who otherwise would not be represented, our society might still be overlawyered, but we would no longer be under-represented. This idea is hardly new. The ABA even has a rule strongly suggesting it. But we have stopped short of making the work mandatory, a point with which most lawyers, not surprisingly, agree. They argue, typically, that pro bono is an admirable goal which they personally intend to meet, but being forced to do it amounts to indentured servitude, and provides those in need with unwilling and thus substandard counsel.

This argument is disingenuous and self-serving. Practicing law is not a right, but the privilege of a regulated profession. If bars can require continuing education, they can also insist that lawyers spend 3% of their time doing free work. At the ABA Professionalism conference, William Reece Smith remarked that he believed that "lawyers could get by with 5% less." He is right. Despite widespread support for the pro bono concept, in actuality nowhere near the necessary number of lawyers participate.

Making pro bono mandatory would accomplish much. First, there would be enough lawyer hours to serve all those in need. Second, once lawyers are used to the idea, their pride and ego, if nothing else, will cause them to do the job well. And historically, lawyers have come to treasure this work, on behalf of real people with real problems, as among their most rewarding experiences. The enlightening effect on the profession itself would be enormous.

Doing this might make one generation of lawyers very unhappy. But once they got used to it, at 40 hours a year and 900,000 lawyers in the country, 36,000,000 hours of legal service would become available, enough to provide access to all those without the wealth to currently have full access to the legal system.

Again, this is a complicated issue. "Buying out" one's service must be addressed (I wouldn't allow it, but would allow firms to substitute lawyers within limits). Other issues include whether the services must specifically address the poor and legal issues, as opposed to improving the profession or non-legal civic duties. But the basic principle should become a requirement. We ought to put our money -- and time -- where our mouth is.

 

6. Passage of a rule to clarify that the duties of an insurance defense lawyer where conflicts occur between insurer and insured.

Much controversy occurred at ALI over this issue. No specific rule addresses it. Indeed, as we wrote the first edition of our course book, we were surprised at how little law school text material covered the inherent conflict between insurer and insured. It must be clarified.

The rule should make clear that conflicts that occur during the course of the representation of an insured under a policy of insurance must result in the lawyer in question protecting the rights of the insured, even at the expense of the insurer, and must include maintaining confidences of the insured even where revelation of those confidences would ordinarily be provided the insurer in a non-conflict situation.

7. Passage of a rule directly addressing the ethics of representing a class in a class action case, utilizing existing case law.

The growth of class actions, the increasing temptation for class and defense counsel to collude together given the financial rewards, and the vacuum of "hard law" on what duties lawyers owe to passive class members all make a rule in this area a necessity. Again, this is a complicated issue grossly oversimplified here. But any rule should make it clear that the lawyer for the class owes fiduciary duties to each and every class member, even if the passive members are not clients. This would require class counsel to protect the interests of future class members, to avoid the temptation to create a class for settlement purposes only (temporarily derailed by the Supreme Court's Amchem opinion this term), and to split classes when the interests of one group are at odds with the interests of another.

 

Respectfully submitted,

 

 

Richard A. Zitrin

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