COMMISSION ON EVALUATION OF THE RULES OF PROFESSIONAL CONDUCT - Meeting Minutes

Saturday, February 2, 2002

Philadelphia, Pennsylvania

Commission Members Present:
E. Norman Veasey, Chair
Lawrence J. Fox
Albert C. Harvey
Geoffrey C. Hazard, Jr.
Patrick E. Higginbotham
W. Loeber Landau
Margaret C. Love
Susan R. Martyn
Richard E. Mulroy
Lucian T. Pera
Henry Ramsey, Jr.
Laurie D. Zelon

Liaison:
Burnele V. Powell, Center for Professional Responsibility
Seth Rosner, Center for Professional Responsibility

Reporters:
Nancy J. Moore
Carl A. Pierce

Staff:
Jeanne P. Gray
Charlotte K. Stretch

Guests:
Bevin Bump, Standing Committee on Solo and Small Firm Practitioners
Stephen Gillers, Commission on Multijurisdictional Practice
Bruce Green, Commission on Multijurisdictional Practice

The Commission met on Saturday, February 2, from 1 to 5 p.m.

I. Midyear Meeting

Al (General) Harvey advised the commission members that their mission was to get the House of Delegates to adopt Report 401 before the close of the Midyear Meeting. He provided an overview of the amendments that have been proposed and discussed the speaker line-up for contested amendments.

II. Rule 4.2

Al Harvey pointed out that Les Jacobs has filed two amendments on Rule 4.2. The first is to delete the second sentence of Comment [3] and change the third sentence to read: When communicating with the subject of an investigation or the accused in a criminal matter, a government lawyer must comply with this Rule in addition to honoring the constitutional rights of the accused.

The second amendment is to change Comment [5] to read: This Rule also applies to communications with any person, whether or not the subject of an investigation or a party to a formal adjudicative proceeding, contract or negotiation, who is represented by counsel concerning the matter to which the communication relates. This Rule applies even though the represented person initiates or consents to the communication. A lawyer must immediately terminate communication with a person if, after commencing communication, the lawyer learns that the person is one with whom communication is not permitted by this Rule.

A commission member objected to the proposed formulation because it could be interpreted to constrict the scope of what prosecutors are permitted and should be permitted to do. He felt it would be better to discuss this issue in direct communications with the DOJ.

During a break, several Commission members reached an agreement with Mr. Jacobs to break Comment [5] into two comments, move it up to follow Comment [1], and to reword it as follows:

[5][ 2] This Rule also applies to communications with any person , whether or not a party to a formal adjudicative proceeding, contract or negotiation, who is represented by counsel concerning the matter to which the communication relates.

[5] [ 3] This Rule applies even though the represented person initiates or consents to the communication. A lawyer must immediately terminate communication with a person if, after commencing communication, the lawyer learns that the person is one with whom communication is not permitted by this Rule.

The Commission supported this agreement. The Commission also agreed to oppose all of the other amendments to Rule 4.2.

III. Rule 1.6

The Commission reiterated its decision not to seek reconsideration of the House action in August on Rule 1.6.

IV. Rule 1.17

Geoff Hazard reported that a subcommittee on Rule 1.17 had worked with the reporters and with the Standing Committee on Solo and Small Firm Practitioners to reach an agreement on Rule 1.17. Bevin Bump, representing the Standing Committee, thanked the subcommittee for its assistance and cooperation. The Commission approved the new proposal.

V. Reports 8B and 105

Al Harvey read a proposed statement he plans to present to the House in the event the two reports regarding strategic alliances go forward to debate. He expressed his hope that the New York State Bar Association and the Ethics Committee will agree to withdraw the two reports so that the Ethics 2000 Commission's Report 401 can be completed at this Midyear Meeting. The Commission agreed and approved the statement.

VI. Rule 6.1

The Commission agreed to accept as a friendly amendment a proposal by Robert Weinberg to add the words "and encourage" to Comment [11] of Rule 6.1.

VII. Multijurisdictional Practice

The Chair welcomed Bruce Green and Steve Gillers, who were invited to speak to the Commission about the MJP Commission Report. Professors Gillers and Green provided an overview of the MJP Commission's discussions on Rule 5.5. The Commission then discussed whether it should take a position on the MJP Commission's Report. Some members felt that since the issue of multijurisdictional practice was assigned to a specific commission, authoritative action should be deferred to that group. Others noted that the Commission needed to make sure that the changes it recommended for Rule 8.5 and the general direction of the changes it recommended for Rule 5.5 are at least maintained. The Commission decided to take no position at this time. Professor Gillers asked that individual Commission members send their comments to the MJP Commission.

Respectfully Submitted,

Charlotte Stretch