Commission on Evaluation of Rules of Professional Conduct

Meeting Minutes
Friday, May 30, and Saturday, May 31, 1998
Montreal, Quebec, Canada

Commission Members Present:

Liaison:

Seth Rosner, Board of Governors

Guest:

President Jerome J. Shestack

Reporters:

Nancy J. Moore
Carl A. Pierce

Staff:

Jeanne P. Gray
Charlotte K. Stretch

Observers:

Samuel Dash, Center for Professional Responsibility Governing Committee
Mark I. Harrison, Association of Professional Responsibility Lawyers
M. Peter Moser, Standing Committee on Ethics and Professional Responsibility
Robert E. O'Malley, Attorneys' Liability Assurance Society
Hugh E. Reynolds, Jr., Section of Tort and Insurance Practice
William P. Smith, III, National Organization of Bar Counsel
Raymond R. Trombadore, Standing Committee on Professional Discipline

The Commission meeting was held on Friday, May 30, 1998, from 3:30 p.m. to 5:00 p.m, immediately following the public hearing, and on Saturday, May 31, 1998, from 9:00 a.m. to 5:30 p.m.

I. Chair's Report

At the request of several members, the Commission discussed its role in reviewing matters before the House of Delegates. The Commission decided that it would not be able to respond to every ethics issue that may come before the House during the Commission's tenure and that it will attempt to proceed to discuss issues as outlined in its Work Plan. The Commission decided that it would not be able to take a position on the Litigation Section's proposal on civility.

President Shestack visited the meeting and encouraged the Commission to advance the high moral ground and help lawyers be better human beings.

II. Rule 4.2

The meeting began with a discussion of the extent to which an exception to Rule 4.2 was necessary for criminal and civil law enforcement. Several members remarked that the proposal circulated by the Ethics Committee is broader than necessary. A Commission member reported that under current case law, "authorized by law" includes situations in which prior case law has indicated that a contact is allowable and situations where court authorization is sought prior to contact. The Commission discussed whether "authorized by law" should be expanded to "authorized by law or court order."

In support of this idea several observations were made: in practice lawyers do seek authorization by court order prior to contacting a represented person; courts have been willing to entertain these applications; and the Reno regulations do require judicial approval when the communication is not initiated by the represented person.

A Commission member noted that this suggestion provides close to a safe haven for the government. He added that if the DOJ felt more was required, it could appeal the McDonald case, request Congressional action, or obtain an Executive Order.

Some Commission members were concerned about what standard a court would apply in reviewing these applications. One observer noted that the issue before the court is whether the person still considers himself to be represented by the lawyer. A Commission member observed that if a lawyer seeks judicial approval the matter would be ex parte which would implicate Rule 3.3 requiring more complete disclosure.

A Commission member felt that the Comment should clarify that the contact cannot be made absent a finding that the person is no longer represented. Several members agreed that the Comment should provide examples of when it is appropriate for a lawyer to go to court to seek approval for a contact and the considerations of a judge in determining whether to approve the contact. Other suggestions for the Comment were that there should be discussion of advance notification and that the Comment section to this and every Rule should clarify the reason for the Rule.

A member asked whether the proposed rule as outlined would cover pre-indictment situations. The Commission agreed that a separate carve-out for those situations was not required.

III. Rule 1.7

Paragraphs (a) and (b)

Professor Moore reviewed the changes made to Rule 1.7 pursuant to the Commission's discussion at the previous meeting, especially the change in the structure of paragraph (b). The Commission expressed general approval of the new structure and the incorporation of an objective standard into the introductory phrase of the paragraph.

A Commission member suggested that the word "material" should be explained more fully. Professor Moore indicated that she plans to rewrite the introductory portion of the Comment to Rule 1.7.

One member reiterated her concern, expressed at a previous meeting, that limiting non-consentability to matters prohibited by law and to direct adversity in litigation is too narrow. She felt that some situations short of litigation should be included as nonconsentable.

Several other Commission members felt that situations other than those designated in paragraph (b) are covered by disclosure and informed consent. One member commented that situations short of litigation are too amorphous to categorize.

One member questioned whether the current draft makes clear that there is a two-stage process in analyzing conflicts of interest - reasonableness and informed consent, and that there are some circumstances where it is not reasonable to seek consent.

The Commission approved paragraphs (a) and (b) as drafted.

Paragraph (c)

The Commission agreed in principle that a writing should be required.

The Commission discussed whether a lawyer must obtain written client consent at the outset of an engagement or at the outset of a matter. The Commission agreed that it would be appropriate to obtain consent at the outset of a matter because a lawyer may have a number of matters with an ongoing client before a conflict arises.

The Commission next discussed what the writing should contain. Some members felt that the most significant information that should be included is what was disclosed to the client. Others felt that only the consent should be in writing. One member suggested that the focus of the writing should be on whether the consent was informed. This member expressed concern that a rule requiring that only the consent be in writing is too lawyer protective. Another member suggested that the writing must at least reveal the predicate for the consent. Professor Moore indicated that the draft envisions that the consent and the information that is the basis for the consent be in writing.

A motion was made to approve the language of Professor Moore's proposed alternative paragraph (c):

The motion passed unanimously. The Commission agreed to study the experience with written disclosure in California.

IV. Rule 2.2

The Commission discussed the rationale behind Rule 2.2 and whether the Rule should be eliminated. The Commission asked Professor Hazard what the Kutak Committee intended with Rule 2.2. He expressed the view that the Rule was a mistake and that the subject matter should have been dealt with in an expanded discussion in the Comment to Rule 1.7.

The Commission agreed to move the substance of Rule 2.2 to the Comment to Rule 1.7. A member suggested that the Comment include a discussion of the role of a true mediator.

V. Rule 1.8

Rule 1.8(a)

Professor Moore began the discussion by summarizing the discussion at the Commission's last meeting. She stated the Commission agreed that the title of the Rule should be changed from "Special Applications" to "Specific Rules;" that clients should be advised of the desirability of seeking independent counsel but that consultation with independent counsel is not required by this Rule; that the type of counsel envisioned by this Rule is legal counsel; that the client's consent should be in writing; and that the Rule should indicate that the independent counsel should be one of the client's choice. She added that the first Comment to Rule 1.8 should discuss the relationship between Rules 1.7 and 1.8.

One member suggested that the phrase "of the client's choice" be deleted because it is not necessary. The Commission agreed and approved the proposed Rule with that amendment.

The Commission agreed to delete the discussion of fee agreements at the end of Comment [1] and to discuss modification of fee agreements in the Comment to Rule 1.5. The Commission then agreed to include the bracketed language at the end of Comment [2] regarding the nonconsentability of some conflicts of interest regarding business transactions in which the lawyer will also be representing the client.

One observer questioned the application of this Rule when a client is in fact independently represented. A member suggested that the Rule apply to clients "not otherwise independently represented in the transaction." Other members were troubled by this suggestion. Professor Moore indicated that she will research the issue.

Rule 1.8(c)

Professor Moore reminded the Commission that the structure of the Rule was changed to reflect the intent of the Rule to prohibit a lawyer from soliciting or inducing a gift from a client. After some discussion regarding whether the substance of this Rule should be covered in a different Rule or Comment, the Commission approved the Rule as drafted.

Rule 1.8(d)

The Commission approved the Rule as drafted.

Rule 1.8(e)

The Commission voted to delete the last sentence of Comment [7] regarding charitable gifts and approved the Rule as amended.

Rule 1.8(j)

The Commission agreed that the words "granted by" were not necessary because liens "granted by" law are also "authorized by" law.

The Commission then discussed whether to include the cross-references to Rules 1.8(a) and 1.5 in the text of the Rule. In recognition that some liens fall within the scope of Rule 1.8(a), the Commission agreed to maintain the cross-references.

Rule 1.8(h)

The Commission agreed to conform the language in paragraph (h)(2) to conform to the language in Rule 1.8(a), so that paragraph (2) would read:

Rule 1.8(k)

The Commission discussed the need for this Rule. One observer argued that the current rules are adequate to deal with the problems the proposed Rule attempts to deal with. Several members felt that the case law and the rules being developed in the various states demonstrate that there is a need for the proposed Rule. The Commission agreed that a Rule was necessary. Some members suggested that all parts of the Rule except the first paragraph be covered in the Comment. The Reporter was asked to draft the Rule both ways. The Commission requested that staff research whether there have been prosecutions under the various state rules covering sex with clients.

Rule 1.8(f)

Professor Moore suggested that a nonconsentability provision be added to the text of the Rule. She pointed out that there will be situations in which a disinterested lawyer would conclude that it would be inappropriate to undertake a representation. The Commission agreed that a nonconsentability provision should be added.

VI. Rule 1.6

Paragraph (a)

The Commission approved the Reporter's rewording of paragraph (a)(2) to refer to use of information that is "reasonably likely to disadvantage" the client.

Paragraph (b)(1)

Several Commission members suggested that paragraph (b)(1) should not include any language to modify "death or substantial bodily harm." One member was concerned with the elimination of the word "imminent" because the term includes an element of timing. An observer pointed out that timing is taken into consideration because the lawyer may only disclose information if the lawyer believes it is reasonably necessary to do so. The Commission agreed that paragraph (b)(1) should include no modifying language.

Paragraph (b)(2)

One member suggested that paragraph (b)(2) be separated into one paragraph on prevention and one paragraph on rectification. He further suggested two changes to the paragraph on prevention: that the paragraph be restructured to focus on prevention of the act rather than prevention of the loss; and that the use of the lawyer's services not be a factor. The Commission agreed with the suggestion.

Paragraph (b)(3)

The Commission discussed whether or not the exceptions listed in paragraph (b)(3) are impliedly authorized and whether the suggested exceptions should be stated in the Rule or simply discussed in the Comment. Professor Pierce pointed out that a client would not be able to prevent a lawyer from revealing or using information in these circumstances if the proposed subsections are specifically included in Rule 1.6. One Commission member voiced concern that in each of the situations listed there are instances where a client should have to give consent. Another member suggested that in many instances a client should be given notice even if the client cannot veto the lawyer's action. An observed suggested that the exceptions should be in the Rule to provide guidance to lawyers and that the Comment should indicate that other exceptions will develop.

The Commission looked at each exception separately and decided that paragraph (b)(3)(i) is impliedly authorized and should not be listed as an exception. With respect to the other exceptions, the Commission discussed the difference between notice to the client and client consent. The Commission agreed that paragraph (b)(3)(iii) should be included as an exception without a requirement of notice to the client, and that paragraphs (b)(3)(ii), (iv), and (v) should be included as exceptions with a requirement of notice to the client.

Paragraph (b)(4)

Professor Pierce reviewed possible modifications of the Rule in light of state variations. The Commission determined that the changes do not significantly alter the Rule and that the current Model Rule has not had problems with interpretation.

The meeting was adjourned at 5:30 p.m.

Respectfully Submitted,

Charlotte K. Stretch

Special Counsel