Ethics Committee Highlights

2020

April

The Standing Committee on Ethics and Professional Responsibility met by conference call on April 29, 2020. The Committee discussed a number of proposed ethics opinions on issues involving conflicts arising out of personal relationships with adversaries,, confidentiality, competence,  anti-harassment and anti-discrimination, and permissive disclosures of confidential information under Model Rule 1.6(b)(5).  The Committee discussed developments on its proposal to amend Model Rule 1.8(e) noting that it was looking forward to receiving comments from other Center Committees.

The Committee considered the Litigation Section’s Resolution on Best Practice for Third-Party Litigation Funding and decided to take no position on the proposal.

The Committee discussed the Resolution and Report of the Science and Technology Section which urges lawyers and courts to adopt policies and practices concerning the use of artificial intelligence. The Committee decided to consider further the ethics issues related to the use by lawyers and courts of artificial intelligence and to take no position on the Section’s proposal at this time.

The Committee reviewed the Resolution and Report of the Standing Committee on Bar Activities and Services, Law Student Division, recommending that the highest court or bar admission authority of each jurisdiction to immediately adopt emergency rules that would authorize 2019 and 2020 law graduates of ABA-accredited law schools, and graduates of prior years who have been since graduation serving as judicial law clerks, who have not yet taken a bar examination, and who apply for admission to the bar, to engage in the limited practice of law, if the July 2020 bar examination in their jurisdiction is cancelled or postponed due to public health and safety concerns arising from the coronavirus pandemic. This Resolution was adopted by the ABA Board of Governors.

On April 29, the Standing Committee on Ethics and Professional Responsibility issued Formal Ethics Opinion 491, Obligations Under Rule 1.2(d) to Avoid Counseling or Assisting in a Crime or Fraud in Non-Litigation Settings.  This opinion is described in the May Highlights.

March

Because of significant interruptions in members’ lives arising out of the Covid-19 pandemic, the Ethics Committee conducted its business in March 2020 via email.

In mid-March the Ethics Committee distributed a draft resolution to more than 25 ABA Entities and Committees proposing an amendment to Model Rule of Professional Conduct 1.8(e).  The Standing Committee on Legal Aid and Indigent Defendants is a co-sponsor of the resolution. The proposed amendment would add a narrow exception to the prohibition against financial assistance to indigent clients in in Rule 1.8(e).  The exception would enable pro bono and nonprofit lawyers and law school clinicians in nonprofit and public interest programs to provide limited financial assistance to indigent clients for living expenses.  The distribution requested comments, suggestions and support.  Following the distribution, the Committee received expressions of support from entities and individuals inside and outside the ABA, including letter of support to the  ABA Board of Governors from the Association of Pro Bono Counsel (“APBCo”), a membership organization of nearly 250 partners, counsel, and practice group managers who run pro bono practices on primarily a full-time basis at more than 100 of the country’s largest law firms.

On March 24, the Ethics Committee published Formal Ethics Opinion 490, Ethical Obligations of Judges in Collecting Legal Financial Obligations and Other Debts. The opinion describes the ethical requirement of judges under the Model Code of Judicial Conduct, Rule 1.1 and 2.6, to undertake a meaningful inquiry into a litigant’s ability to pay court fines, fees, restitution, other charges, bail, or civil debt before using incarceration as punishment for failure to pay, as an inducement to pay or appear, or as a method of purging a financial obligations whenever state or federal law so provides.  Meaningful inquiry is also required by Rules 1.2, 2.2, and 2.5 as a fundamental element of procedural justice necessary to maintain the integrity, impartiality, and fairness of the administration of justice and the public’s faith in it.  A judge also may not set, impose, or collect legal financial obligations under circumstances that give the judge an improper incentive either to multiply legal financial obligations or to fail to inquire into a litigant’s ability to pay.  Finally, the opinion also discusses innovative guidance on best practices for making ability to pay inquiries, including model bench cards, methods of notice, and techniques for efficiently eliciting relevant financial information from litigants.

February

The Standing Committee on Ethics and Professional Responsibility met on February 15 in conjunction with the ABA Mid-Year Meeting in Austin, Texas. The Committee discussed a number of proposed ethics opinions on issued involving e.g. confidentiality, conflicts, competence, and on obligations to prospective clients.  The Committee continued its discussions proposed reports on proposals to amend the ABA Model Rules of Professional Conduct including e.g. 1.2, 1.8, 4.1, and 5.5

Ethics Chair Gillers and member Norman Spaulding reported on their meeting with the Judges’ Advisory Committee about a proposed judicial ethics opinion on ability-to-pay inquiries.

The Committee also discussed amendments to the Innovation Center’s Report and Resolution.

January

The Standing Committee on Ethics and Professional Responsibility met on January 8 via conference call. The Committee discussed a number of proposed ethics opinions on e.g. conflicts, confidentiality, and competence, and on anti-discrimination and harassment, and obligations to prospective clients.  The Committee also discussed reports on proposal to amend the ABA Model Rules of Professional Conduct including e.g. 1.2, 1.8, and 5.5.

The Committee observed that the Innovation Center incorporated many of the Ethics Committee’s suggestions into its Report and Resolution for the February House meeting. The Ethics Committee also reviewed but took no action on the TTIPS resolution and report on legal advice in marijuana-related activities.  

2019

December

The Standing Committee on Ethics and Professional Responsibility met on December 2 via conference call. The Committee discussed a number of proposed professional conduct and judicial ethics opinions including on e.g. judicial obligations with respect to “ability-to-pay” inquiries, duties to prospective clients, and competence, as well as reports on several proposals to amend the ABA Model Rules of Professional Conduct, including Rules 1.8, 1.2, 4.1, and 5.5.  

On December 4, the Committee released Formal Ethics Opinion 489, Obligations Related to Notice When Lawyers Change Firms. The opinion explains the ethical obligations of lawyers to assure the orderly transition of client matters when one lawyer notifies a firm that the lawyer intends to move to a new firm. While firms may require some period of advance notice of an intended departure, the period of time should be the minimum necessary, under the circumstances, for clients to make decisions about who will represent them, assemble files, adjust staffing at the firm if the firm is to continue as counsel on matters previously handled by the departing attorney, and secure firm property in the departing lawyer’s possession. Firm notification requirements cannot be so rigid that they restrict or interfere with a client’s choice of counsel or the client’s choice of when to transition a matter. Firms also cannot restrict a lawyer’s ability to represent a client competently during such notification periods by restricting the lawyer’s access to firm resources necessary to represent the clients during the notification period. The departing lawyer may be required, pre- or post-departure, to assist the firm in assembling files, transitioning matters that remain with the firm, or in the billings of pre-departure matters.

November

The Standing Committee on Ethics and Professional Responsibility met on November 9, in conjunction with the Center for Professional Responsibility Fall Leadership Conference. The Committee discussed a number of proposed ethics opinions on e.g., conflicts,  anti-discrimination and anti-harassment, and competence, as well as reports on several proposals to amend different provisions of the ABA Model Rules of Professional Conduct, including e.g. Rules 1.2, 1.8, 4.1, 5.5, and 8.4.

The Committee heard from Andrew Perlman, Dean and Professor of Law, Suffolk University Law School and Daniel Rodriguez, Harold Washington Professor and former Dean of Northwestern Law School, on the Center for Innovation’s revised report and resolution urging states to consider innovation in the provision of legal services.

In email exchanges that followed and during a teleconference on November 14th, the Committee considered the new draft of the Innovation Center’s report and resolution. The Committee then asked Chair Gillers to negotiate additional changes with Dean Perlman, which the Chair did. Ultimately, and in time to meet the filing deadline, the Committee approved the changes and agreed to co-sponsor the Resolution and Report.

October

The Standing Committee on Ethics and Professional Responsibility held its monthly teleconference on Monday October 14, 2019.

Ethics Counsel Dennis Rendleman’s monthly Ethics in View column was published in Your ABA “There are other ways”.

September

The Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 488 “Judges’ Social or Close Personal Relationships with Lawyers or Parties as Grounds for Disqualification or Disclosure” on September 5, 2019.

The Committee had its monthly teleconference on September 16, 2019, and discussed several possible opinions and possible amendments to the Model Rules of Professional Conduct and the Model Code of Judicial Conduct.