Friday, July 7 - Saturday, July 8, 2000
New York City, New York
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
David T. McLaughlin
Richard E. Mulroy
Lucian T. Pera
Laurie D. Zelon
Seth Rosner, Board of Governors
James Lee, Board of Governors
Burnele V. Powell, Center for Professional Responsibility
Nancy J. Moore
Carl A. Pierce
Jeanne P. Gray
Charlotte K. Stretch
Susan M. Campbell
See list following minutes.
The Commission meeting was held on Friday, July 7, from 8:30 a.m. to 3:00 p.m., and Saturday, July 8, from 8:30 a.m. to 3:00 p.m. in New York City, New York.
I. Administrative Matters
Al Harvey will work with Marina Jacks regarding details of the October Report.
The minutes of the previous meeting were approved as submitted.
III. Rule 1.2
The Commission decided that the Rule should not specifically require a lawyer to abide by client instructions with respect to the means to be used to accomplish the client's objectives. Members noted that there are an infinite array of representations with varying levels of client interest and that these are dynamic situations. A member suggested that the Reporter's Explanation for this Rule might point out that the Commission recognizes the indeterminacy of the problem.
The Commission asked the Reporters to consider alternate language for the second to the last sentence of Comment  to clarify that it refers to conduct that the lawyer reasonably believes but is not certain is unlawful or prohibited by the Rules.
The Commission agreed that the duty to consult about the means by which the client's objectives are to be pursued should be stated in Rule 1.4(a) and to add a cross-reference to Rule 1.4 in Rule 1.2.
The Commission agreed that paragraph (b) should remain unchanged. A member noted that the paragraph is a characterization of a lawyer's role and is helpful.
The Commission agreed that agreements for a limited representation (paragraph (c)) should not be required to be in writing. The Commission will review all writing requirements at its September meeting.
The Commission agreed that the substance of Rule 1.2(e) should be moved to Rule 1.4(a). See discussion under that heading of the minutes.
The Commission did not agree with commentators who suggested that Comment  provides too much authority to a lawyer to take action on a client's behalf without further consultation. Members pointed out that the Comment makes clear that any authorization conferred on a lawyer can be revoked expressly by the client or by a material change in circumstances.
Proposed changes to Rule 1.2(d) and Comment  are discussed with Rule 4.1.
IV. Rule 1.4
The Reporter noted that several different concerns had been aired about Rule 1.4 that indicate a need for further clarification of the lawyer's duty to communicate with a client. The Reporter's memorandum on the comments received on Rule 1.4 proposes a revised paragraph (a) that more clearly identifies the various aspects of the lawyer's duty to communicate with the client. The proposal also places all aspects of the duty to communicate in this Rule rather than having some parts stated in Rule 1.2. A member noted that proposed (a)(1), which is former 1.2(e), should use the same language as 1.2(e).
The Commission approved the proposal for paragraph (a). One member noted that the Comment should be changed to reflect that a lawyer who has blanket settlement authority does not have to advise the client of every offer. Another member felt that the word "situation" in paragraph (a)(5) was too vague. Other members suggested "circumstance", "occasion" or "development".
V. Rule 4.1 and related changes to Rules 1.2 and 1.6
The Reporter explained that the suggested changes to Rule 4.1 are designed to clarify the relationship between Rules 1.2(d), 1.6 and 4.1. The Reporters had been asked to consider deleting Rule 4.1(b) as possibly duplicative of Rule 1.2(d). Some members and observers had objected to the deletion since Rule 1.2(d) did not contain a specific disclosure obligation. The Reporters' proposal after considering the problem has three parts: first, to amend Rule 1.2(d) to include a disclosure obligation; second, to retain Rule 4.1(b) even though it may be redundant with the change to Rule 1.2(d), because the obligation to disclose will most often arise in the context covered by Rule 4.1(b); and third, to amend Rule 1.6 by deleting the reference to "these Rules" in proposed Rule 1.6(b)(6). With respect to the latter, the previous proposal to state in Rule 1.6(b)(6) that a lawyer may reveal information to comply with "these Rules" or with other law or court order had created a circularity problem. Deletion of the phrase solves the problem without making a substantive change in Rule 1.6.
The Commission approved the changes to Rules 1.2(d) and 1.6(b)(6) and the proposal to leave Rule 4.1 unchanged with one dissenting vote.
A member suggested that the phrase "unless disclosure is prohibited by Rule 1.6," be deleted from Rule 4.1(b). Other members felt that since the proposed exceptions in Rule 1.6 are already controversial it would be better to leave the Rule as is.
An observer asked why the word "prevent" had been deleted in Rule 1.6(b)(3). The Commission clarified that it had not intended to delete "prevent" at the last meeting when it suggested that paragraph (b)(3) be restored to the public comment draft. This was not clear in the previous minutes. The Commission reaffirmed that (b)(3) should include the term "prevent" and use the phrase "that is reasonably certain to result or has resulted from" in the text.
VI. Rule 1.11
The Commission agreed with the Reporter's suggestion that Rule 1.11 should have a narrow definition of matter for purposes of applying Rule 1.9 to former government lawyers. The Commission agreed that the personal prohibition of former government lawyers should include "substantially related matters" with respect to adverse matters. The Commission asked the Reporters to give further thought to whether the same standard should apply with respect to non-adverse matters.
The Commission agreed that the personal prohibition of former government lawyers should be limited to matters in which they participated personally and substantially.
The Commission agreed that Rule 1.9(b) should apply to former government lawyers.
The Commission asked the Reporter to try to put all of the provisions that apply to current and former government lawyers together in Rule 1.11.
VII. Rule 1.12
The Commission agreed that arbitrators and mediators should be treated the same as former judges.
A member stated that Rule 1.12 should refer to Rule 2.X, which covers lawyers serving in the role of third-party neutrals. He felt that persons who serve in the role of neutrals as outlined in Rule 2.X should be assimilated into Rule 1.12 as judges with screening but no imputation.
The Commission agreed that as with judges, the person disqualification for mediators and arbitrators would be limited to the same matter and not extended to substantially related matters.
A member suggested that the Comment clarify that other law or ethical codes (such as those applicable to arbitrators or mediators) may impose additional obligations.
VIII. Rule 2.X
The Commission did not agree with the suggestion of a commentator that the Comment should address the neutral's responsibility to ensure that parties have a full understanding of the facts and the law and that the outcome is fair to all parties.
The Commission felt that it was not necessary for the Rule to address the lawyer-neutral's ability to draft settlement agreements.
A member suggested that Comment  and the last sentence of Comment  be deleted. The Commission agreed.
In the second sentence of Comment , the Commission agreed to replace "greatest" with words such as "may be significant."
The Reporter noted that comments on Rule 1.0 are not due until the Commission's next meeting at which time the Commission will review the proposed definition of tribunal. She noted that some early commentators have questioned the approach of including arbitration in the definition of tribunal but not including mediation. Several members thought that it would be a mistake to include mediation as a "tribunal" and thus apply Rule 3.3.
IX. Rule 3.8
The Commission agreed to restore the requirement that prosecutors exercise reasonable care to prevent non-supervised personnel from making impermissible extrajudicial statements, former paragraph (e), by replacing the proposed new language at the end of paragraph (f) with the language of former paragraph (e).
The Commission disagreed with the suggestion of the Department of Justice that proposed paragraph (e), former paragraph (f), be deleted.
In response to a suggestion by a commentator that the Rule should more clearly state that prosecutors have "ethical obligations" that go beyond the limit of what is legally enforceable, the Commission noted that Comment  already addresses this issue and felt that no change was necessary.
The Commission voted to delete Comment  due to concerns of the DOJ.
The Commission asked the Reporters to attempt to reword Comment  to avoid any implication that the application of the Rules to prosecutors will always be the same as for other lawyers. The Commission further requested that the Reporters consider adding some language to Rule 8.4 to clarify that prosecutors may lawfully supervise agents in the use of deceitful tactics where the Department is legally permitted to use such deceit and the prosecutor is merely advising on what the client is lawfully permitted to do.
X. Rules 5.4 and 5.7
The Commission was advised that the House of Delegates will probably approve the New York/New Jersey/Illinois recommendation 10F on multidisciplinary practice, which is a rejection of MDP and the MDP Commission's report. Recommendation 10F may include a referral to the Ethics Committee and Ethics 2000 to make recommendations consistent with the statement of principles articulated in 10F. The Commission agreed that it would not be consistent with its charge to be directed to produce something with a particular result. The Chair will convey that concern to the proponents of Recommendation 10F and request that the language directing a certain course of action be deleted. A member noted that this is a complicated, controversial and relatively unstable subject that cannot be analyzed in two months. The Commission agreed that any work it does undertake on MDP should not delay the issuance of its report in October.
XI. Rule 5.5
The Commission discussed what action needed to be taken in light of the recent creation of a Commission on Multijurisdicitional Practice. There was a consensus that the present draft of Rule 5.5 is appropriate, but the Commission acknowledged that the MJP Commission may decide to go further. The Commission agreed to include a note to that effect in its report. The Commission asked Lucian Pera to serve as the liaison from Ethics 2000 to the new MJP Commission.
XII. Rule 8.5
Some commentators on this Rule felt that no changes should be made to current Rule 8.5 because the Rule is relatively new and states are not interested in disciplining lawyers admitted elsewhere. The Commission felt that the proposed draft is an improvement over the current Rule especially in light of proposed changes to Rule 5.5 and the creation of the new MJP Commission. Another commentator suggested that the Commission clarify if conduct in anticipation of litigation should be treated under paragraph (b)(1). The Commission suggested that a Comment on paragraph (b)(2) could point out that the predominant effect of a particular conduct could be in the place where the suit is filed.
XIII. Rule 4.2
The Commission agreed to strike the word "derivative" in Comment  and to delete the last two sentences of the Comment.
A member suggested amending the end of Comment [3a] to say "is permissible under this Rule." After some discussion of deleting the proposed last sentence and restoring the language of the original comment, there was a consensus to make the suggested change.
The Commission decided to amend Comment  by deleting the example in the first sentence and replacing "criminal accused" with "a represented person" and deleting the last three words of the second sentence.
The Commission agreed to amend Comment  by adding a sentence explaining that a lawyer may speak with a represented person who is seeking a second opinion in a matter. A member pointed out that this would not, of course, apply to the lawyer on the other side of a matter.
The Commission did not agree with a concern raised over the deletion of the reference in Comment  to "applicable judicial precedent." The Commission felt that the change in the text of the Rule necessitated the deletion. The Commission did not feel it was necessary to add a general statement about sources of law that might authorize a communication.
The Commission discussed whether a reference to "members of a governing board" should be added in Comment  to the list of organizational constituents who cannot be contacted without consent of the organization's counsel. A member pointed out that there is no clear consensus in the case law on this topic. The Commission agreed unanimously to replace the words "an agent or employee" in Comment  with the words "a constituent."
The Commission did not agree with a suggestion that language be added to the Comment regarding lawyers who represent themselves.
The Commission decided against adding a comment regarding communications with members of a class in a class action.
The Commission agreed to add a cross-reference to Rule 8.4(a).
XIV. Rule 2.3
The Commission did not agree with a suggestion to state in the text that an evaluation requires the client's express or implied authority.
XV. Rule 3.1
The Commission did not agree with a commentator that the deletion of "good faith" in the Rule would chill creative advocacy. The Reporter noted that the original Rule and the proposed draft both have objective standards.
The Commission agreed to delete the reference to an action "taken primarily for the purpose of harassing or maliciously injuring another person" as inconsistent with the Rule text.
The Commission agreed with a suggestion to replace "retract the claim, defense or contention" at the end of Comment  with the words "take suitable action."
XVI. Rule 4.3
The Commission agreed that it was appropriate to retain the prohibition on giving certain legal advice to unrepresented persons and felt that Comment  should remain unchanged.
XVII. Rule 6.1
The Commission agreed to propose no substantive changes to Rule 6.1. The Commission voted to state in its report that it believes that pro bono service is an important ethical obligation of lawyers; that the current system of providing needed pro bono service is not working; that the Commission realizes that a mandatory pro bono requirement will not cure the problem; and that the Commission supports and encourages efforts by the ABA to increase pro bono participation. The Commission also decided to add a Comment addressing the responsibility of law firms to ensure that lawyers meet their pro bono obligations. The Reporters will recommend an appropriate placement for the Comment.
XVIII. Rule 6.5
The Commission voted to delete the words "reasonably should know" from paragraph (a) so that a lawyer is not required to conduct a check and so that more lawyers will be willing and able to participate in non-profit and court-annexed limited legal services programs.
In response to a comment, the Commission agreed to clarify that a lawyer is not allowed to provide short-term limited legal services to a client if the lawyer knows that another lawyer in his firm is representing the opposing party in the matter.
The Commission agreed to drop the reference to "persons of limited means" in Comment .
XIX. Rule 1.5
The Commission approved the deletion of "where appropriate" in paragraph (a) and the addition of a new Comment [x], which explains that the factors in paragraph (a) are applied as relevant in the circumstances. The new Comment will not include the bracketed language.
The Commission decided against substituting "the amount of the fee in proportion to the value of services performed" for the current language in paragraph (a)(4).
The Commission decided against adding "the relevant sophistication of the lawyer and the client" as an additional factor in paragraph (a).
The Commission decided that no change should be made in the reference to "regularly represented client" in paragraph (b).
The Commission agreed that the text of paragraph (e) should indicate that the client must be advised of the number of shares to each lawyer.
The Commission decided against requiring a writing for only those matters over a certain de minimus amount but agreed that Comment  should clarify that the writing can be very simple. A member pointed out that misunderstandings frequently occur in small transactions. She did not agree that a de minimus exception would encourage unbundling. The Commission will review all writing requirements at the next meeting.
The Commission agreed that paragraph (a) should refer to costs and disbursements as well as fees.
XX. Rule 1.8
The Commission agreed with the Reporter's suggestion to delete paragraph (i) and move the discussion of family relationships to a Comment in Rule 1.7. The Reporter noted that the change regarding imputation of personal interest conflicts in Rule 1.10 makes the paragraph unnecessary in Rule 1.8. A member suggested that the final explanation of the Commission's work should note that the change does not change protection for clients.
A motion was made and seconded to delete the words "or direction" from paragraph (f)(1). The motion passed by a vote of 6 to 5, with the Chair breaking a tie. The Commission members disagreed on whether the inclusion of the term provided additional protection for clients by requiring client consent to any direction, or implied an authority that does not in fact exist for third parties to provide direction and possibly interfere with a lawyer's independent judgement. A member suggested that it would be better to discuss direction in a Comment to Rule 1.7 or Rule 5.4. Another member agreed, pointing out that the original Model Code provision was simply a statement about the significance of third-party compensation; it did not try to define any other problem.
An observer suggested that the Reporters consider deleting the "confirmed in writing" requirement in paragraph (f)(1).
A member asked the Reporter to consider deleting the bracketed language in Comment .
XXI. Rules 5.1 and 5.3
The Commission agreed to retain the bracketed language in Comment .
There was a consensus to add a separate Comment regarding law firm responsibility. A member cautioned that the Rule must continue to place primary emphasis on individual responsibility.
Changes to Rule 5.3 will conform to the changes agreed upon on Rule 5.1.
XXII. Rule 7.2
The Commission felt that it was not necessary to add "law firms" in a number of provisions in the various advertising rules, especially in light of the changes to Rules 5.1 and 5.3. A motion to delete the reference to "law firms" in paragraph (c) failed with only two votes.
XXIII. Rule 7.3
The Commission decided that the prohibition in paragraph (a) against in-person, live telephone, and real-time electronic solicitation should not be deleted.
The Commission discussed a suggestion that paragraph (a) be amended to permit solicitation of prospective organizational clients. The Commission asked the Reporters to draft a proposal based on the rules of Illinois, Connecticut and Massachusetts for the Commission's consideration.
The Commission decided against adding a ban on targeted direct mail solicitation within 30 days of an accident.
The Commission decided against deleting paragraph (c).
The Commission agreed with a suggestion to add language to specify the responsibility of a lawyer to ensure access to justice.
The Commission declined to restore the deleted sentence in Comment .
XXV. Rule 1.3
The Commission approved the Reporter's redraft of Comment .
The Commission decided to use the word "agreeing" rather than "acceding" in the last sentence of Comment .
XXVI. Rule 1.16
The Commission decided to delete the final phrase in Comment  but approved the Reporter's other suggested changes to the Comment.
The Commission approved the suggested changes to Comment  and decided against adding an additional sentence about when a representation is completed.
XXVII. Rule 1.7
A member suggested that the Commission consider an alternative to the requirement of a writing, such as a benefit of some kind to lawyers who do have a writing. Another member pointed out that in some circumstances a client does not want details spelled out in a writing so it will not be possible to have a Rule that says a writing will only be effective if it meets certain delineated requirements. Another member noted that allowing the lawyer to confirm the agreement in writing goes a long way to soften the impact of this Rule. Several members suggested that the Reporters draft something for the Commission's consideration even though the Commission may decide that the current proposal is preferable.
The Commission discussed prospective waivers and Comment . A member asked if the last sentence of the Comment (regarding looking at the consent at the time the waiver is sought to be implemented) was an accurate statement of the law. Several members felt that if the test operates as of the facts as they eventuate at a later time then an assignment of the risk would be impermissible. A member suggested that the last sentence be replaced with a statement that existence of independent counsel is strong evidence that the client understood the risks. He suggested that the new fourth sentence also be deleted. Other members added that the second to last sentence may imply that open-ended agreements may be effective. They noted that effective waivers are specifically tailored to the subject matter of the representation and should state specifically the kinds of representations the lawyer will not undertake. A member added that such waivers are almost always in connection with a defined representation and are not open-ended.
William Barker, American Insurance Association
John Berry, National Organization of Bar Counsel
Samuel Bufford, Los Angeles County Bar Association
David Caylor, International Municipal Lawyers Association
Dane Ciolino, Louisiana Bar Association
Robert Creamer, Attorneys' Liability Assurance Society
Steve Csontos, Department of Justice
Claudia Flynn, Department of Justice
Art Garwin, Commission on Multidisciplinary Practice
Bonnie Hough, Judicial Council, California
Alan Houseman, Center for Law and Social Policy
John Jenkins, Standing Committee on Delivery of Legal Services
Diane Karpman, Association of Professional Responsibility Lawyers
Scott Kerr, Law Society of Ontario
Thomas Morgan, Administrative Law Section
George Overton, Chicago Bar Association
Brian Redding, Attorneys' Liability Assurance Society
Don Saunders, National Legal Aid and Defender Association
Sylvan Siegler, Tax Section
William P. Smith, National Organization of Bar Counsel