Policy Implementation Highlights

2019

December

The South Carolina Supreme Court has amended its Rules of Professional Conduct. The Court:

(1) amended its Rule 1.0 to include a definition for “writing” or “written” and this definition tracks the ABA Model definition;

(2) amended Comment [6] to its Rule 1.1 on Competence to include a statement on lawyer’s need to keep abreast of changes in the law and practice including “a reasonable understanding of the benefits and risks associated with technology the lawyer uses to provide services to clients or to store or transmit information related to the representation of a client  . . .” This statement is substantially similar to ABA Rule 1.1 Comment [8]; and

(3) amended its Rule 1.6 to include paragraph (c) to follow ABA Model Rules 1.6(c) and adopted amended its Comments [20] and adopted new Comment [21] to address new paragraph (c).

October

The Colorado Supreme Court has amended Colorado Rule of Professional Conduct 8.4, Misconduct, to include a prohibition on sexual harassment. Colorado was one of the 26 jurisdictions that had an anti-bias provision in the black letter of its Rules of Professional Conduct prior to the adoption of ABA Model Rule 8.4(g) in 2016.

In new paragraph 8.4(i), Colorado has both expanded their definition of misconduct to specifically include sexual harassment and explained the scope of provision as conduct “in connection with the lawyer’s professional activities.” New Comment [5A] explains that professional activities is not “limited to those that occur in a client-lawyer relationship.”

The Michigan Supreme Court has amended its Comment to Michigan Rule of Professional Conduct Rule 1.1 to address a lawyer’s responsibility to be tech competent. Michigan’s Comment on maintaining competence now reads, “Maintaining Competence. To maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education, including the knowledge and skills regarding existing and developing technology that are reasonably necessary to provide competent representation for the client in a particular matter. If a system of peer review has been established, the lawyer should consider making use of it in appropriate circumstances.” It will be effective January 1, 2020.

At the same time, the Court also amended the Comments to Michigan Rule of Professional Conduct 1.6. The Comment now provides: “Confidentiality of Information. When transmitting a communication that contains confidential and/or privileged information relating to the representation of a client, the lawyer should take reasonable measures and act competently so that the confidential and/or privileged client information will not be revealed to unintended third parties.” This language is similar to that found in ABA Model Rule of Professional Conduct 1.6(c).

The New Mexico Supreme Court has amended New Mexico Rule of Professional Conduct 8.4 to include a prohibition on discrimination and harassment. The provision largely tracks ABA Model Rule of Professional Conduct 8.4(g). Minor verbal changes are made, and substantively, the protections of the black letter of the New Mexico rule do not extend to persons based on their socioeconomic status. New Mexico also adopted Comments to explain the new provision. These Comments track the ABA Model, but are not identical to them.

September

The Disciplinary Board of the Supreme Court of Pennsylvania is seeking comments on a new proposal to amend Rule 8.4 of the Pennsylvania Rules of Professional Conduct. The proposal would add new paragraph (g) to the Rule. Proposed new paragraph (g) in Pennsylvania reads: (g) in the practice of law, by words or conduct, knowingly manifest bias or prejudice, or engage in harassment or discrimination, as those terms are defined in applicable federal, state or local statutes or ordinances, including but not limited to bias, prejudice, harassment or discrimination based upon race, sex, gender identity or expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, or socioeconomic status. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude advice or advocacy consistent with these Rules.

Proposed new Comments (3) and (4) read: (3) For the purposes of paragraph (g), conduct in the practice of law includes participation in activities that are required for a lawyer to practice law, including but not limited to continuing legal education seminars, bench bar conferences and bar association activities where legal education credits are offered. (4) The substantive law of antidiscrimination and anti-harassment statutes and case law guide application of paragraph (g) and clarify the scope of the prohibited conduct.

The Alaska Bar Association Rules of Professional Conduct Committee continues to study whether that association should recommend an antidiscrimination and anti-harassment provision in the black letter of its Rules of Professional Conduct.

The Iowa Supreme Court has issued an order asking for comments to a proposal to amend Iowa Rule of Professional Conduct including substantive amendments to:

  • Iowa Rule 32:3.8 adding paragraphs (g) and (h) and new Comments [7], [8], and [9] as adopted by the ABA in 2008;
  • Iowa Rule 32:5.5(d) and (e) as adopted by the ABA in February 2013 and February 2016 as part of the Ethics 2020 recommendations;
  • Iowa Rule 32:7.1-7.5 as amended by the ABA in August 2018;
  • Iowa Rule 32:8.4 as amended by the ABA in August 2016; and
  • Iowa Rule 32:8.5, Comment [5] as adopted by the ABA in February 2013 as part of the Ethics 2020 proposal.

Nebraska Rule of Professional Conduct 3-501.6 provides that the “relationship between a member of the Nebraska State Bar Association Committee on the Nebraska Lawyers Assistance Program or an employee of the Nebraska Lawyers Assistance Program and a lawyer who seeks or receives assistance through that committee or that program shall be the same as that of lawyer and client for the purposes of the application of Rule 1.6.”

The Nebraska Supreme Court has expanded this provision to include judges, law students, and prospective lawyers who receive assistance through the committee or program. While there is no direct equivalent in the ABA Model Rules of Professional Conduct, Model Rule of Professional Conduct 8.3(c) explains that the mandatory reporting of certain actions by other lawyers does not extend to disclosure of.