Standing Committee on Ethics and Professional Responsibility
The Standing Committee on Ethics and Professional Responsibility issues ethics opinions interpreting both the Model Rules of Professional Conduct and the Model Code of Judicial Conduct. ABA Formal Opinions have been cited as persuasive when courts around the nation interpret state-adopted Rules of Professional Conduct.
Third Discussion Draft of Possible Amendments to Model Rules of Professional Conduct Concerning Lawyers’ Client Due Diligence Obligations
The Standing Committees on Ethics and Professional Responsibility and Professional Regulation have developed a Third Discussion Draft of possible amendments to the Model Rules of Professional Conduct concerning lawyers’ client due diligence obligations. This Third Discussion Draft addresses Model Rule Conduct 1.16 (Declining or Terminating Representation) and its Comments.
When a lawyer practices the law of more than one jurisdiction, choice-of-law questions arise concerning which jurisdiction’s ethics rules the lawyer must follow. Model Rule 8.5 provides that when a lawyer’s conduct is in connection with a matter pending before a tribunal, the lawyer must comply with the ethics rules of the jurisdiction in which the tribunal sits, unless otherwise provided. For all other conduct, including conduct in anticipation of litigation not yet filed, a lawyer must comply with the ethics rules of the jurisdiction in which the lawyer’s conduct occurs. However, if the predominant effect of the lawyer’s conduct is in a different jurisdiction, then the lawyer must comply with the ethics rules of that jurisdiction.
In the absence of special circumstances, lawyers who copy their clients on an electronic communication sent to counsel representing another person in the matter impliedly consent to receiving counsel’s “reply all” to the communication. Thus, unless that result is intended, lawyers should not copy their clients on electronic communications to such counsel; instead, lawyers should separately forward these communications to their clients. Alternatively, lawyers may
communicate in advance to receiving counsel that they do not consent to receiving counsel replying all, which would override the presumption of implied consent.
Under Model Rule 4.2,1 if a person is represented in a matter, lawyers for others in the matter may not communicate with that represented person about the subject of the representation but instead must communicate about the matter through the person’s lawyer, unless the communication is authorized by law or court order or consented to by the person’s lawyer.
ABA Model Rule of Professional Conduct 7.3(a), amended in 2018, contains a narrowed definition of what constitutes a “solicitation.” Rule 7.3(b) delineates the type of solicitation that is expressly prohibited. Rules 8.4(a) and 5.3 extend a lawyer’s responsibility for solicitation prohibitions not only to actions carried out by the lawyer directly but also to the acts of persons employed by, retained by, or associated with the lawyer under certain circumstances. Rule 5.3(b) requires lawyer supervisors to make reasonable efforts to ensure that all persons employed, retained, or associated with the lawyer are trained to comply with the Rules of Professional Conduct, including Rule 7.3(b)’s prohibition. Partners and lawyers possessing comparable managerial authority in a law firm must make reasonable efforts to ensure that the firm has training that reasonably assures that nonlawyer employees’ conduct is compatible with the professional obligations of lawyers. Under Rule 5.3(c), a lawyer will be responsible for the
conduct of another if the lawyer orders or with specific knowledge of the conduct ratifies it, or if the lawyer is a manager or supervisor and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. Rule 8.4(a) makes it professional misconduct for a lawyer to “knowingly assist or induce another,” to violate the Rules or knowingly do so through the acts of another. Failing to train a person employed, retained, or associated with the lawyer on Rule 7.3’s restrictions may violate Rules 5.3(a), 5.3(b), and 8.4(a). Many legal consumers obtain information about lawyers from acquaintances and other professionals. The Model Rules of Professional Conduct are rules of reason. Recommendations or referrals by third parties who are not employed, retained, or similarly associated with the lawyer and whose communications are not directed to make specific statements to particular potential clients on behalf of a lawyer do not generally constitute “solicitation” under Rule 7.3.
Communication between a lawyer and a client is necessary for the client to participate effectively in the representation and is a fundamental component of nearly every client-lawyer relationship. When a client’s ability to receive information from or convey information to a lawyer is impeded because the lawyer and the client do not share a common language, or owing to a client’s noncognitive physical condition, such as a hearing, speech, or vision disability, the duties of communication under Model Rule 1.4 and competence under Model Rule 1.1 are undiminished. In that situation, a lawyer may be obligated to take measures appropriate to the client’s circumstances to ensure that those duties are capably discharged. When reasonably necessary, a lawyer should arrange for communications to take place through an impartial interpreter or translator
capable of comprehending and accurately explaining the legal concepts involved, and who will assent to and abide by the lawyer’s duty of confidentiality. The lawyer also should use other assistive or language-translation technologies, when necessary. In addition, particularly when there are language considerations affecting the reciprocal exchange of information, a lawyer
A lawyer may passively invest in a law firm that includes nonlawyer owners (“Alternative Business Structures” or “ABS”) operating in a jurisdiction that permits ABS entities, even if the lawyer is admitted to practice law in a jurisdiction that does not authorize nonlawyer ownership of law firms.1 To avoid transgressing Model Rule 5.4 or other Model Rules and to avoid imputation of conflicts under Model Rule 1.10, a passively investing lawyer must not practice law through the ABS or be held out as a lawyer associated with the ABS and cannot have access to information protected by Model Rule 1.6 without the ABS client’s informed consent or compliance with an applicable exception to Rule 1.6 adopted by the ABS jurisdiction. The fact that a conflict might arise in the future between the investing lawyer’s practice and the ABS’s work for its clients does not mean that the lawyer cannot make a passive investment in the ABS. If, however, at the time of the investment the lawyer’s investment would create a personal interest conflict under Model Rule 1.7(a)(2), the lawyer must refrain from the investment or appropriately address the conflict under Model Rule 1.7(b).
The ABA House of Delegates amended Model Rule of Professional Conduct 1.8(e) at the 2020 Annual Meeting of the association. The Ethics Committee filed Revised Resolution and Report 107 proposing an amendment to Model Rule 1.8(e) to permit lawyers representing indigent clients pro bono individually or through a non-profit or public interest organization or through a law school clinical or pro bono program to provide modest assistance for living expenses. Permitted gifts include contributions for food, rent, transportation, medicine, and other basic living expenses.
Resolution 109 Adopted By ABA HOD
On August 8, 2016 the ABA House of Delegates approved Standing Committee on Ethics resolution 109 to amend Model Rule 8.4 to bring into the blackletter of the ABA Model Rules of Professional Conduct an anti-harassment and antidiscrimination provision. A list of co-sponsors and supporters as well as previous drafts and comments is available here.
The Standing Committee on Ethics and Professional Responsibility voted to file a resolution with the ABA House of Delegates for consideration in August 2016 recommending that Model Rule of Professional Conduct 8.4 be amended to create new paragraph (g). This new paragraph would bring into the black letter of the Model Rules an anti-discrimination and anti-harassment provision. The resolution would also include the creation of three new Comments. A redlined version of the proposal is available here.
The Standing Committee on Ethics and Professional Responsibility issued a draft proposal to amend ABA Model Rule of Professional Conduct 8.4 and Comment  to Rule 8.4.
A public hearing was held on Sunday, February 7, 2016 from 3:00 p.m. – 5:00 p.m.at the Marriott Marquis San Diego Marina, 3rd Floor, South Tower, Balboa & Mission Hills Meeting Rooms, San Diego, CA.
After reviewing comments from the public hearing and comments submitted in writing, the Committee will resume its work with the aim of producing a final Report and Resolution for consideration by the ABA House of Delegates at the August 2016 Annual Meeting in San Francisco, CA.
Please visit the Model Rule 8.4 homepage to see the proposal, the memorandum and all comments received to date. To access the proposal directly, click here. The memorandum explaining the Ethics Committee’s drafting choices is also available here. The proposal reflects the efforts of the Ethics Committee to examine how the Model Rules of Professional Conduct address discrimination and harassment by lawyers and is meant to further focus and advance the discussion on this important issue.
In conjunction with the ABA Annual Meeting, the Standing Committee on Ethics and Professional Responsibility held a roundtable discussion on a working discussion draft of revisions to ABA Model Rule of Professional Conduct 8.4. Under consideration was relocating the prohibition against knowingly discriminating or harassing another person in conduct relating to the practice of law or in the practice of law from current Comment  into the black letter of the Rule as new paragraph (g). Additional revisions were also made to the Rule. Interested persons were encouraged to come to the roundtable to discuss the draft and offer their recommendations and suggestions.
The Working Discussion Draft from this rountable is available here. More information about language choices the Committee made is available here.