Friday, May 7 and Saturday, May 8, 1999
Commission Members Present:
Chief Justice E. Norman Veasey, Chair
|Lawrence J. Fox
|Susan R. Martyn (on Saturday)
|Albert C. Harvey (on Saturday)
|David T. McLaughlin
|Geoffrey C. Hazard, Jr.
|Richard E. Mulroy
|Judge Patrick E. Higginbotham
|Lucian T. Pera
|W. Loeber Landau
|Judge Henry Ramsey, Jr.
|Margaret C. Love
Seth Rosner, Board of Governors
T. Richard Kennedy, Chair, ABA Standing Committee on Professional Discipline (on Saturday)
M. Peter Moser, Chair ABA Standing Committee on Ethics and Professional Responsibility (on Saturday)
Stephen J. Csontos, Senior Legislative Counsel, Tax Division, Department of Justice
Nancy J. Moore
Thomas D. Morgan
Carl A. Pierce
Jeanne P. Gray
Susan M. Campbell
Charlotte K. Stretch
See list following minutes.
The Commission meeting was held on Friday, May 7, 1999 from 10:00 a.m. to 5:00 p.m. and Saturday, May 8, 1999 from 8:30 a.m. to 4:00 p.m. in Wilmington, Delaware.
I. Minutes of Previous Meetings
The minutes of the Commission meeting of February 5 - 6, 1999 were approved as submitted.
II. Rule 1.18
The Reporter explained that this draft is not substantially changed from the prior draft but has been rearranged to correspond to the Restatement. He stated that paragraph (a) covers the three main obligations of a lawyer with respect to a prospective client: protecting information learned in the consultation; protecting the prospective client's property; and providing competent assistance if legal services are provided. Paragraph (b) states the rule for conflicts and imputation. The proposed Rule permits representation when a client has interests materially adverse to those of the prospective client if 1) any affected clients and the prospective client consent in writing to the representation or 2) the lawyer took steps to obtain a minimal amount of information and the lawyer is screened.
In response to a question the Reporter clarified that the Rule is intended to track Rules 1.6 and 1.9(c): if a lawyer could not use information with respect to a client, the lawyer cannot use information with respect to a prospective client. The Reporter agreed that the language could track those Rules more closely.
A member queried whether Rule 1.6 specifically states that information relating to a representation can be used to perform a conflicts check. He also asked if it is clear in Rule 1.6 that lawyers may make use of knowledge or experience gained in practice. The Chief Reporter noted that use of information for conflicts checks is permissible within a firm, and the Rule so states in the Comment, but use of information to check conflicts with a potential new firm is not necessarily permitted. The Commission agreed that it was important to clarify these points in the Comment.
A member asked why it was necessary to also require, in addition to screening, that the lawyer take steps to avoid exposure to more information than necessary to determine whether to represent the prospective client. The Chief Reporter responded that screening is an accommodation to the firm and its clients but the firm should not have a license to dig for information. The Commission felt that the Comment should explicitly state that absent consent, the terms of (b)(1) and (2) have to be met.
A member asked how this Rule would operate with respect to a current client who has interests adverse to the prospective client. Would a solo practitioner have to discontinue representation of the current client? He did not feel that the Rule should require withdrawal. A member responded that the safest way to avoid this problem is to carefully control the consultation by asking names and doing a conflicts check prior to obtaining sensitive information. Another member pointed out that sensitive information is often provided inadvertently or obtained in spite of efforts to control the consultation. He felt that under current law there is little protection for the prospective client.
The Reporter indicated that there is no current Rule on this subject. He stated that the ALI believes that this proposed Rule reflects the current law. The Restatement proposes screening as the appropriate compromise in these cases. The Reporter agreed with a suggestion that advance consent is necessary in "beauty contest" situations.
A member observed that the discussion highlighted the problem of trying to turn a descriptive rule (ALI) into a proscriptive rule. She noted that facts are critical in these cases and felt that this issue should be covered in a comment to the existing rules.
A member asked why the proposal uses the language in paragraph (b), ".. information from the prospective client that could be significantly harmful to that person...." The Chief Reporter responded that the use of the word "significantly" is to highlight the fact that this Rule has a different standard than Rule 1.9.
A member questioned whether paragraph (a)(3) (providing competent assistance if legal services are provided) is a correct statement of the law. Others noted that related issues are when an attorney-client relationship is formed and whether Rule 1.1 applies to prospective clients. A member suggested that the Comment to Rule 1.1 discuss these issues (e.g., unintended conduct might establish an attorney-client relationship for some purposes.)
A member pointed out that Rule 1.15 already refers to property of third persons and could just be cross-referenced in this Rule. There is also a duty in Rules 4.3 and 4.1 not to mislead someone who is not a client or to misuse information.
A motion was made and seconded to amend the proposed Rule as follows:
1. paragraph (a) should be just the first sentence of paragraph (a) of the current draft;
2. paragraph (b) should be the second sentence of paragraph (a) of the current draft, plus proposed paragraph (a)(1) of the current draft;
3. paragraphs (a)(2) and (a)(3) of the current draft should be deleted; and
4. paragraph (c) should be paragraph (b) of the current draft.
The Commission agreed 7 to 2 to have the Reporters draft a new proposal along the lines suggested in the motion. A member suggested that the Comment provide a comparison with Rules 1.6 and 1.9.
III. Rule 1.11
In response to a question, the Commission discussed why this Rule needs to be amended. Several members stated that, while most states have adopted Rule 1.11, there is a great deal of confusion about the operation of the Rule and its relationship with Rule 1.9.
The Reporter asked the Commission to focus on a number of questions to determine the Commission's direction on this Rule.
1. Should the Rule relate only to lawyers who go from full-time government employment to full-time private practice? The Reporter pointed out that in the current proposal any representation of the government is covered by the Rule. The Commission disagreed with the current proposal and took the position that the Rule should relate only to lawyers moving from full-time government employment to full-time private practice. The Commission further agreed that the Comment should clarify that when a lawyer in private practice represents a government agency -- whether on a single case basis or more regularly -- the government agency is just like any other client and Rules 1.7 - 1.10 apply in the usual way.
2. Should the Rule treat a situation in which a former government lawyer acts in a way consistent with the government's interest differently from one in which the former government lawyer is now aligned against the government? The Commission agreed that the two situations should be treated the same as they are in the current draft.
3. Should the Rules be the same when the lawyer has moved into government as they are for the move to private practice in terms of whether the new representation must be materially adverse to the former client? The Reporter pointed out that in current Rule 1.11(c), as in (a) and (b), the new government lawyer is disqualified whether a matter the government is working on favors or is contrary to the former private client's interest. At the last meeting, the Commission requested that the Reporter draft a rule that would track Rule 1.9. Thus, the current draft takes the view that the lawyer who moves to a government agency is only barred from matters that are materially adverse to the former private client. The Reporter encouraged the Commission to reassess this position and return to the Model Rule position on this matter. The Commission agreed with the Reporter's suggestion.
4. Should the prohibition extend to matters "substantially related" to those on which the lawyer worked while in government or in private practice? The Reporter noted that Rule 1.9 does extend to substantially related matters but does not extend to matters favorable to the former private client's position. Present Rule 1.11 does not extend to matters that are substantially related. The Commission agreed that Rule 1.11 should not extend to matters that are substantially related.
5. Should both government agencies and private firms have to give notice of screening to affected parties? The Reporter explained that in the Rule now in force, paragraph (a) provides for screening with notice to the appropriate government agency (where the lawyer in private practice is disqualified after participating personally and substantially in a matter as a government officer or employee); no notice is required in paragraph (b) (where a lawyer having confidential government information is screened from participation in a matter); and no screening is required under paragraph (c) (where a government lawyer is disqualified after participating personally and substantially while in private practice or nongovernmental employment).
He stated that the current draft makes no change to paragraphs (a) and (b) with respect to screening but screening and notice have been added to paragraph (c) to make it parallel to paragraph (a). A member wondered if adverse and non-adverse matters should be treated differently. An observer noted that both screening and notice would be extremely difficult in some government agencies where lawyer turnover is high and the office handles a very large number of cases at any given time. A motion to include screening and notice in paragraph (c) was defeated with only two votes in favor.
The Commission agreed with a suggestion that the Comment clarify that there is no imputation in Rule 1.11(c).
6. Should the Rule reach general background information learned while in government (i.e., information that did not involve particular parties)? The Commission felt that it was not possible to determine what information would fit in this category that a lawyer should not use and thus it was agreed that the present rule permitting use of such information should be preserved.
The Chair appointed a Subcommittee of Lucian Pera and Margy Love to review future drafts of the Rule.
IV. Rule 3.3
The Reporter indicated that he had reordered the structure of the Rule so that paragraph (a) addresses the lawyer's duties with respect to his or her own statements to the tribunal, paragraph (b) addresses the lawyer's duties with respect to the presentation of evidence to the trier of fact, and paragraph (c) addresses the lawyer's duty to speak when necessary to avoid complicity in client misconduct. Paragraph (d) then addresses the duration of these duties and asserts the proposition that the duty of candor trumps confidentiality. Paragraph (e) confers discretion on the lawyer to refuse to offer evidence the lawyer reasonably believes but does not know is false.
The Reporter recommended deleting the word "material" in the first half of paragraph (a)(1), arguing that a lawyer should never lie to a tribunal. With respect to subsequent correction of a false statement of law or fact (the second half of paragraph (a)(1)), the Reporter felt that the word "material" should stay in the text. Otherwise, tribunals might be inundated with insignificant corrections. A member argued that "material" should be deleted in the second half of the paragraph as well because in every case it should be up to the tribunal, not the lawyer, to decide whether something is material. The Reporter pointed out that the difference would be that with respect to a subsequent correction, the lawyer had not lied when the statement was made. A motion was made and seconded to delete the word material in both parts of paragraph (a)(1). The motion passed 6 to 3.
The Reporter recommended that the word "material" also be deleted in paragraph (c) and in paragraph (a)(3). The Commission agreed. A motion was then made to reconsider the decision to delete "material" in the second half of paragraph (a)(1). The motion for reconsideration passed.
The Commission then discussed the possible alternative approaches to presenting the testimony of a criminal defendant. One option is Monroe Freedman's approach -- to allow full representation of a criminal defendant even if the lawyer knows the defendant is lying. Another option is to permit the defendant to testify in narrative form if the lawyer knows the defendant is lying. The Reporter stated that the current weight of authority is that the right to testify does not include the right to present perjured testimony.
A member expressed the opinion that permitting narrative testimony makes it possible to unite the conflicting principles of the defendant's constitutional right to testify and the lawyer's responsibility not to present perjured testimony. An observer pointed out that while the Rules cannot indicate how a court will decide what a defendant's constitutional rights are, they can state what a lawyer has to do after perjured testimony has been offered. He felt that the lawyer must disclose the perjured testimony.
A member suggested that the Rule should distinguish between a criminal defendant and others. A motion was made and seconded that the Commission support the proposition that when a lawyer knows the testimony of a criminal defendant was false or will be false, the lawyer must disclose that to the tribunal. The motion passed 5 to 3.
A member felt that the Rule should clarify that it makes no difference if the false testimony is elicited or offered on direct, in cross-examination, or in a deposition, etc. He felt that the Comment should also state that there are instances, such as eliciting testimony for purposes of impeachment, when a lawyer is not sponsoring the truth of the testimony.
A member suggested that the Commission clarify that these changes, other than the change in the first half of paragraph (a)(1), are being made because of redundancy.
V. Rule 4.4
Professor Hazard chaired the discussion on Rule 4.4. The Reporter noted that she had moved the discussion of the inadvertent fax from Rule 3.4 (Fairness to Opposing Party and Counsel), where it appeared in the last draft, to Rule 4.4 (Respect for Rights of Third Persons). Proposed Rule 4.4(c) states that a lawyer may not read a misdirected fax if the lawyer realizes prior to reading it that the communication was not intended for the lawyer. The Rule further provides that if the lawyer reads the communication prior to realizing that it was inadvertently sent, the lawyer is not required to erase it from memory and is allowed to make a copy.
A member asked if any distinction should be made between documents that are privileged and those that aren't. He wondered if the inadvertent disclosure would itself waive the privilege. Another member asked the reason for the Rule in cases where the document enjoys no privilege. The Chair responded that the reason was professional courtesy and the integrity of the profession.
A member pointed out that inadvertent disclosure is a frequent occurrence in civil discovery.
Some members felt that the Rule should only apply to "confidential" documents. They suggested that with regard to "confidential" documents, a lawyer should not read or copy the documents or should request permission from a court to use the document by arguing that the document was improperly withheld in discovery, or the privilege was waived, etc. A member pointed out that the Ethics Opinions on this subject discussed privileged documents. The Reporter noted that in the context of the Model Rules, confidential information would be information that in the hands of the lawyer would be protected by Rule 1.6.
The Chair asked if the Commission agreed with the first part of paragraph (c) (where the lawyer knows prior to reading it that the communication was inadvertent): that the Rule should be mutual professional respect over maximizing the opportunity for client advantage. The Commission agreed by a vote of 7 to 2, with 1 abstention. He then asked if the Commission felt that the first sentence should apply only to "confidential" communications. The consensus of the Commission was that it should not apply only to "confidential" communications. Another member suggested that the language in the Comment regarding general warnings on fax cover sheets should state that such warnings "may" not be sufficient rather than "generally" are not sufficient.
The Commission then discussed the second part of paragraph (c). A member again raised the issue of whether this part of (c) should cover only "confidential" or "privileged" information, as in the Ethics Opinions. The Reporter pointed out that Rule 1.6 protects all information relating to the representation. A member added that it is often hard to determine whether information is "confidential." There was a consensus that the lawyer may copy the document but may not otherwise use it until the other side has been given the opportunity to seek an order preventing further use. A member asked the Reporter to consider moving the second sentence of (c) to the comment or to a new paragraph (d).
Several members felt that paragraph (b) was too broad and that the problem covered by (b) should be handled in tort law. A Reporter observed that the Restatement provision on this subject meant to cover duties imposed by law on institutions such as hospitals, universities, or credit companies. A motion to delete paragraph (b) passed with one vote opposed. A Reporter noted that if paragraph (b) is deleted, the language in Comment  to Rule 4.2 will need to be changed from "shall" to "should."
VI. Law Firm Discipline
Dick Kennedy, Chair of the Standing Committee on Professional Discipline, reported on the Committee's proposed changes to the Model Rules for Lawyer Disciplinary Enforcement regarding law firm discipline. He indicated that the Committee believes that it is not necessary to postpone the amendments to the discipline rules until the Commission has considered possible changes to the Model Rules regarding law firm discipline. He felt that the Model Rules already include provisions that subject a firm to discipline. He stated that the Committee would like to proceed with the amendments in August. Mr. Moser, Chair of the Standing Committee on Ethics and Professional Responsibility, reported that the Ethics Committee has taken no stand on the amendments to the MRLDE. The Ethics Committee has provided the Ethics 2000 Commission with a number of suggestions for possible amendments to the Model Rules.
A Commission member responded that he had no difficulty with the concept of law firm discipline but it will take the Commission some time to determine how best to revise the Model Rules. Another member voiced his concern over a change from the current emphasis in the Rules on individual accountability. Another member noted that he was previously opposed to law firm discipline but now appreciates that it makes sense in the context of omissions rather than wrongful conduct. He felt that it may be necessary to amend only Rule 5.1(a) (first part) which would provide a predicate for some types of discipline against firms where it is not possible to identify the lawyer responsible.
A motion was made to place the issue of law firm discipline with the Commission Reporters to prepare draft recommendations for a future meeting, and to decline to take any action with respect to the Discipline Committee proposal. The motion passed unanimously.
VII. Lawyers' Political Contributions
Mr. Moser reported that the Ethics Committee was directed by the House of Delegates to present a rule on Lawyers' Political Contributions along the lines of the recommendation of the Ad Hoc Committee on Judicial Campaign Finance. The Ethics Committee has prepared two versions of a proposed Rule on this matter. One, which is exactly what the House requested, states that a lawyer cannot make a contribution for the purpose of gaining a political appointment. The other states that a lawyer cannot make a contribution if the lawyer knew or should have known that political appointments are or will be dependent upon making or soliciting political contributions. The Ethics Committee feels that the second proposal contains an objective standard which is easier to prove. Several members expressed their disagreement with both versions of the proposed Rule. There was a consensus that the Commission will take no position on the Ethics Committee's proposals.
VIII. Rule 4.2
Professor Hazard served as Chair for the discussion of Rule 4.2. He clarified that the draft under discussion is the Ethics Committee Draft of April 24, 1999, which was prepared in response to a April 19, 1999 draft prepared by the DOJ.
ABA President Philip Anderson urged the Commission to try to reach a reasonable accommodation with the Department of Justice. He stated that he met with Attorney General Reno who agreed with him that reasonable people should be able to agree on a formulation that will meet the expectations of those involved. He noted that the issues with respect to Rule 4.2 have been pending for well over two years and need to be resolved. President Anderson observed that there have been attempts in Congress to preempt state law in this area. He indicated that the ABA and the Conference of Chief Justices are opposed to federalizing the law but that could happen if the ABA does not act quickly. He added that the ABA must continue to have a leadership role in the writing of ethics rules.
Chief Justice Veasey confirmed that the CCJ is waiting for the ABA to try to reach an accommodation with the DOJ and would like to see this happen as soon as possible. Mr. Moser agreed that the ABA has an opportunity here to reach agreement with the DOJ. He stated his understanding that President Anderson would like the Ethics Committee to submit an amended Rule 4.2 to the House for debate in August. The Ethics Committee would like the support of Ethics 2000.
A member stated his belief that paragraph (b) should only apply to undercover criminal operations. He felt that is what the DOJ wanted and he viewed undercover operations as less of a threat to the attorney/client relationship. He also expressed his concern that if paragraph (b) is added the DOJ would then argue that "authorized by law" must mean significantly more than what is covered in paragraph (b). President Anderson responded that the DOJ's position is that it is not always possible to know at the outset whether an investigation will be civil or criminal. If forced to choose, the DOJ would label an investigation as criminal. Regarding the attack on Rule 4.2, President Anderson stated that if the ABA does not try to accommodate the DOJ now, the Association will have no leverage to complain about any future actions by the Department in order to get around the requirements of the Rule. He added that he is convinced that the DOJ is acting in good faith.
A member expressed his opinion that the Commission had already discussed the concerns of the DOJ and had added court order and amended the Comment in response. He questioned the need for further changes. Another member felt that the changes under consideration were not appropriate for state prosecutions which are far more numerous than federal prosecutions. An observer responded that state prosecutors do not supervise police investigations in the same way that the federal government does. The Chief Reporter agreed that to the extent that state prosecutors do not supervise agents, the Rule does not affect them and does no harm. She disagreed with a suggestion that the amended Rule would encourage state prosecutors to supervise agents. She observed that states are increasingly conducting complex investigations.
A member asked whether the purpose of paragraph (b) is to make explicit what is already in the case law. The Reporter stated that paragraph (b) is consistent with federal case law but that there is confusion in the way cases are decided: courts might ignore the Rule; argue that Rule 4.2 does not apply in a given situation; or argue that a contact is authorized by law.
The Chair encouraged the Commission to provide its comments on the Ethics Committee draft. He began by suggesting that the three subparagraphs in paragraph (b) should apply to any contact with a represented person, not just those described in paragraph (b). He added that the Rule should not distinguish between federal and state prosecutions.
A motion was made to approve the black letter text of the Ethics Committee draft with the subparagraphs in (b) moved to a new paragraph (c). A motion to amend the original motion to limit the application of paragraph (b) to criminal matters was defeated with only 3 votes in favor. A motion to amend the original motion to limit the application of paragraph (b) to undercover investigations was defeated with only 3 votes in favor. The original motion passed 7 to 3, with Chief Justice Veasey abstaining.
The Chair asked for suggestions regarding the Comments. A member suggested that the words "a lawyer knows" in the third and sixth lines of Comment  should be deleted. An observer noted that those words were not in the DOJ draft and were added by the Ethics Committee. The Commission agreed that the words should be deleted. The Commission also agreed that the last sentence of  should be deleted because the change in the structure of paragraph (b) [with the addition of the new paragraph (c)] makes the last sentence unnecessary.
A member stated that he preferred the court order example in the Commission draft to the one in the Ethics Committee draft. The Commission agreed.
A member questioned what the phrase "such as additional, different, or ongoing unlawful conduct," at the end of the first sentence of Comment  was supposed to mean. She noted that the current rule uses the term "separate." The Commission agreed that "separate" was preferable and that "ongoing" was ambiguous.
At the suggestion of a member, the Commission requested that the Ethics Committee look carefully at the last sentence of Comment .
A Reporter noted that the last two sentences of Comment  of the Ethics 2000 draft were deleted from the Ethics Committee draft. An observer felt that the sentences were not as necessary with the new text in the black letter rule. The Chair pointed out that the intent of the sentences was to note the difference between something not being prohibited and something being authorized. The Commission requested that the idea be included in the Comment.
The Chair asked the members of the Commission's subcommittee on Rule 4.2 to work with the Ethics Committee to produce a draft both entities and the DOJ can agree on. He reiterated that a draft that accommodates all of the groups would obviate the necessity of legislation. The joint working group will meet on Tuesday, May 11, 1999, at 8:30 a.m. at the ABA office in Washington, D.C. He asked the Reporters to draft a document for discussion at the meeting.
IX. Rule 1.5
The Reporter noted that Rule 1.5 is largely unenforced partly because of the formulation of the current Rule. Thus, the new draft has changed the formulation to a prohibitory rule: "A lawyer shall not charge a fee larger than is reasonable in the circumstances." A member suggested deleting any reference to the size of the fee. Another member asked about agreements between lawyers and clients that may be unreasonable. An observer added that disagreements about fees are the biggest problem with lawyer-client relations. A member made a motion to return to the Code formulation: "A lawyer shall not make an agreement for, charge, or collect an unreasonable fee." The motion passed unanimously.
The Commission next discussed whether fee agreements should be in writing. The Reporter pointed out that only six or seven states require a writing but suggested that the Commission seems to be moving in the direction of an engagement letter that covers scope, fees, conflicts, etc. A member added that the proposed Rule does not require that the writing be signed. He felt that such a requirement would be a significant burden. A member suggested that the Rule should no longer exempt ongoing relationships; this exception was a "grandfather clause" that is no longer needed. The Chief Reporter felt that if the purpose of the Rule is to ensure that clients understand how the lawyer charges, then ongoing relationships should be exempted. She also felt that it is not always clear when a new matter has started. Several members noted the writing requirement protects lawyers as well as clients. A motion to delete the exemption for ongoing relationships passed 7 to 3. A member suggested that the Rule be rewritten in the active voice.
Several members remarked that the additional language in paragraph (b) was not necessary and was more in the nature of "best practice." A member suggested adding a comment with examples of what might be included in the writing. The Commission agreed.
The Reporter pointed out that the new draft amends Rule 1.5(a)(8) regarding contingent fees from the current "whether the fee is fixed or contingent" to "the amount of risk assumed by the lawyer when the fee is contingent on the outcome of the matter." The Reporter stated that the basis for charging contingent fees is the risk assumed -- the risk that there would be no recovery or that it would be smaller than initially expected. A member commented that the Commission should not attempt to reform contingent fees, but should point out to lawyers that for disciplinary purposes a contingent fee can be a problem if little risk is involved. Several members noted that there are risks associated with fixed fees as well as contingent fees and that all fees should be evaluated by the amount of risk involved. A motion was made and seconded to put the word "fixed" back in paragraph (a)(8) and to elaborate on problems with contingent fees in the Comment. The motion passed unanimously. The Commission asked the Reporter to redraft Comment . Some members asked the Reporter to consider changing "amount" of risk to "degree" or "extent" of risk.
The Reporter asked if the Commission wanted to amend paragraph (c) to require that the lawyer give the client a realistic alternative to a contingent fee. He noted that this was covered in the Code ECs. The Commission was not in favor of the change.
The Reporter asked the Commission to comment on the changes to paragraph (e)(2) which would require "informed consent in writing" to the participation of all lawyers involved as well as to the proportion of the fee each lawyer is to receive. The Reporter noted that the Restatement includes language regarding disclosure of the portion of the fee each lawyer is to receive. A member commented that disclosure would inhibit referrals which would result in lawyers handling matters outside their competence. An observer felt that as long as the fee was reasonable, the portion going to each lawyer need not be automatically disclosed. The Commission agreed that if the client asks the lawyer must disclose the information. A motion was made to delete the last phrase of (e)(2). The motion passed 8 to 1.
A member asked what the reference to "joint responsibility" in paragraph (e)(1) was intended to mean. Several members felt that it meant joint responsibility for the case including joint liability for malpractice. Another member felt that the ethical responsibility of the lawyer is to refer the matter to a competent lawyer. There was consensus to continue the requirement of joint responsibility.
X. Alternative Dispute Resolution
The Chief Reporter reviewed the proposed change to add mediators and third-party neutrals to Rule 1.12 which currently covers former judges and arbitrators. The draft does not include screening for mediators and third-party neutrals. Several persons who work in this field have argued that screening is necessary in order for those who do this work to make a living. A member argued that mediators are not like full-time judges and did not feel that there should be a special rule for mediator. Another member felt that screening would work because the mediator/participant relationship is more arm's length that the lawyer/client relationship. A member added that a mediator can get insulation from consent rather than from screening. A Reporter observed that the proposed Rule is consistent with Rule 1.9(a) which does not allow screening. The Chief Reporter clarified that paragraph (d) treats parties to a mediation like former clients. A motion was made to accept proposed Rule 1.12 as drafted. The motion passed 8 to 2. The Commission agreed with a suggestion to combine paragraphs (c) and (d).
XI. Other Rules
The Chair urged the Commission members to review the drafts that were not discussed at the meeting, including the other drafts relating to ADR, and to provide comments to the Reporters by June 30.
XII. Future Meetings
The Commission agreed to hold a Spring meeting in Memphis. At the request of the Reporters the Commission also agreed to add an additional meeting day (Sunday) at future meetings.
Charlotte K. Stretch
Chris Bostick, Section of Real Property, Probate and Trust Law
David Caylor, International Municipal Lawyers Association
Robert Creamer, Attorneys' Liability Assurance Society
Noel Hensley, Southwestern Legal Foundation
Stephen C. Krane, New York State Bar Association
Robert E. O'Malley, Attorneys' Liability Assurance Society