Commission on Evaluation of Rules of Professional Conduct

Meeting Minutes
Friday, August 6 through Sunday, August 8, 1999
Atlanta, Georgia

Commission Members Present:

Liaison:

Seth Rosner, Board of Governors

Reporters:

Nancy J. Moore
Thomas D. Morgan
Carl A. Pierce

Staff:

Jeanne P. Gray
Susan M. Campbell
Charlotte K. Stretch

Observers:

See list following minutes.

The Commission meeting was held on Friday, August 6, 1999 from 9:00 a.m. to 4:00 p.m., on Saturday, August 7, 1999 from 9:00 a.m. to 4:00 p.m., and on Sunday, August 8, from 9:00 a.m. to noon in Atlanta, Georgia.

I. Chair's Report

Chief Justice Veasey reported that President-Elect Martha Barnett conveyed to him a sense of urgency in completing this project. He asked the Commission to consider ways to complete the project quickly and receive maximum input from ABA entities and others. A member pointed out that a Section representative advised the Commission at the hearing on Thursday that Sections would be unlikely to review the drafts carefully until the draft is complete. In light of that, the Commission decided that it would file a preliminary discussion draft in October 2000. The Commission also agreed to establish a more proactive outreach to the Sections and other interested entities.

The Reporters indicated that they would plan to have a report on every remaining Rule for the October meeting. They noted that it is important to view the Rules as a whole since so many issues affect more than one Rule. The Commission thanked the Reporters for their outstanding work.

The Commission agreed that it should not try to put too fine a point on every issue at this stage and that it would not be diverted by collateral issues.

II.     Minutes of Previous Meetings

The minutes of the Commission meeting of May 7 - 8, 1999 were approved as submitted.

III.    Rule 4.2

Professor Hazard, Chair of the Subcommittee on Rule 4.2, reported that relations are cordial with the Department of Justice but that the Ethics Committee/Ethics 2000 proposal before the House of Delegates will be withdrawn. He noted that the Leahy Bill, which is scheduled to be considered soon, asks the Rules Committee of the Judicial Conference to look at this issue.

The Commission agreed that it will proceed with a fresh review of Rule 4.2 as part of its Work Plan.

IV. Rule 3.3

The Reporter said he did not think a separate paragraph on criminal defendants was necessary since the current draft specifies that constitutional law will trump the principle in paragraph (b).

A member observed that, according to the Comment, criminal defendants who will perjure themselves cannot be called to testify. He felt that since no lawyer can call the defendant in those circumstances, the client is not disadvantaged by the failure to be called, and the lawyer need not withdraw.

A discussion on the tension between the defendant's right to testify and the lawyer's obligation not to offer testimony the lawyer knows to be false followed. The Reporter noted that, according to case law, the constitutional right to testify does not include a right to testify falsely. He felt that the ethical obligation should be separated from the constitutional entitlement and that the constitutional issue should not be codified in the ethics rules. A member said that the issue should be recognized in the Comment but that the Commission should not attempt to resolve it.

A member asked if the Rules should tell lawyers what to do when confronted with a client who insists on being allowed to offer perjurious testimony. An observer thought this was a "best practice" concept and should not be added to the rules.

A member remarked that the language in Comment [6], line 29 reads "the lawyer must refuse to offer." He said there is a difference between not offering evidence and not eliciting it and noted that the right to testify belongs to the client, not the lawyer. A member suggested that the penultimate sentence should say "if the lawyer anticipates" that the testimony will be false. Another member suggested that the sentence convey the idea of "eliciting" rather than "presenting" testimony.

A member questioned the use of "as true" in Comment [7]. A Reporter said the concern was a lawyer offering a witness's testimony for the purposes of later impeaching it. The Reporters will clarify the point.

The Commission approved Comment [11] as drafted.

The Reporter said that the bracketed language in the second sentence of paragraph (b) is intended to clarify what "offers" means (e.g., whether it covers cross-examination and depositions). A member felt that the black letter and the Comment should clarify that the idea of sponsorship applies to presenting both a witness at trial and a client at a deposition. The Commission agreed that since courts are heavily involved in settlement, the use of depositions as a basis for settlement is essentially a representation to the court and thus part of the adjudicative process. The Commission agreed to add "to a tribunal" to paragraph (b) and indicate in the Comment that tribunal embraces the discovery process.

A member asked that the title "Remedial Measures" be restored in the Comment prior to Comment [8].

The Commission then discussed the last sentence in paragraph (b). Several members thought the Rule should distinguish the situation where the witness believes his testimony is true (there is no intent to deceive) but the lawyer knows it is false. A member suggested that the definition in Comment [7] should read "knowingly false." The Commission voted 5 to 4 to leave the Comment as written.

Several members thought it was too much of a burden for a lawyer to correct statements the lawyer knows to be false but the witness believes to be true. A member said the Commission needs to determine if correcting false statements by a witness is a power or a duty. He felt that if it is a duty the sentence should say "knowingly false." A member suggested that the Comment would flow better if the third sentence were moved to follow the first sentence. Another member wondered if there have been any problems in the case law with the definition of false.

The proposition "a lawyer may not offer evidence of a witness the lawyer knows to be lying" passed 7 to 3. The Commission agreed that this should be explained in Comment [7].

The Reporter advised the Commission that an alternative to paragraph (c) was presented in the Reporter's Observations. The alternative broadens a lawyer's duty to report misconduct - it is not limited to acts by the client and does not require a determination of whether the lawyer's silence will assist the client.

Some members suggested returning to the language of the Model Code of Professional Responsibility. A member said the old language is limited to jury tampering. He added that the choice is whether to have a general duty or a very limited one - should lawyers have a duty to report or should they just have the option of doing so? The Reporter proposed presenting a choice between the specific approach and a more generalized duty in the draft discussed at the next meeting.

A member asked why the draft couldn't use current paragraph (c), drop "by the client" and add "preserves the integrity of the proceeding." A Reporter said that wouldn't cover situations that might not be criminal or fraudulent.

A member was concerned about the discussion of withdrawal in Comment [10]. The Reporter pointed out that the discussion would be deleted if the alternative approach was approved.

The Reporter pointed out that Comment [12] includes a definition of "conclusion of proceedings." A member suggested using the term "final review."

The Reporter raised the issue of the definition of "adjudicative proceedings" in Rules 3.3 and 3.9. A member suggested that this issue be deferred until the Commission looks at Rule 4.1.

A member felt that the deletion of "material" in paragraph (c) seemed to be for purely aesthetic reasons. The Commission agreed "material" should be returned.

A member suggested that the new sentence in Comment [4] be deleted. He didn't think it was a proper definition of "directly adverse." The Commission voted to delete the sentence.

The Commission agreed to look at this Rule again in October.

V. Alternative Dispute Resolution: Rule 1.12

The Reporter stated that the Commission has received several comments in favor of non-consensual screening where a neutral is disqualified for having served as a mediator or arbitrator in the same or a substantially related matter. An observer informed the Commission that the Section of Dispute Resolution favors non-consensual screening. The Commission discussed a variety of factors related to screening. Some reasons given for allowing non-consensual screening were: firms will not be willing to allow lawyers to serve as neutrals and the need to support court-annexed ADR; the fact that there is no lawyer/client relationship in ADR; and the freedom of clients to choose lawyers. Some reasons given for not permitting non-consensual screening were: some arbitrators are chosen by sides and are partisan; arbitrators and mediators are not the same as judges; consistency with Rule 1.10; loyalty to clients; the prohibition is limited to substantially related matters; the difficulty in generalizing about the ADR process; and the fact that neutrals do receive confidential information. A Reporter questioned whether the whole complex process of private ADR should be covered in the Model Rules.

The Commission discussed the fact that participants in ADR can contract for alternative arrangements such as whether or not to allow screening if a disqualifying situation develops. A member noted that the contract would have to acknowledge that the participants do not know at the outset how the ADR process will unfold (e.g., the extent of confidential information that will be given to the neutral). Another member thought any discussion of contracts would have to distinguish between court-ordered and private ADR. The Commission agreed that the Comment should state that the participants may contract in private ADR or in court-ordered ADR if consistent with the court order.

The Commission voted 7 to 2 not to allow nonconsensual screening. The Commission also agreed with the Reporter's decision to combine paragraphs (c) and (d).

VI. Alternative Dispute Resolution: Rule 2.X

The Reporter explained that the ADR community feels there should be a rule on lawyers as dispute resolution neutrals. She noted that paragraph (b) covers disclosures that the neutral must make. Several members and observers noted that there are a number of court rules and other standards in this area. They argued that the Rule should refer to other applicable law. Another member added that if a lawyer is a member of a firm, disclosures regarding any conflicts that the firm might have would also be required.

A member asked if consent of the participants was required after disclosure. One member felt that consent would be assumed if the parties were represented but should be required for unrepresented persons. Another member felt that if such a provision was included here, it would have to be included in other places in the Rules as well, such as Rule 1.13(d). Others agreed that it was inconsistent with the neutral's function to provide Rule 1.4 informed consent because the neutral is not providing advice.

A member suggested that the Rule should only address issues unique to lawyers: advising participants that the lawyer is acting as a neutral and not as a lawyer; and addressing the issue of imputation. It was moved and seconded to include only paragraphs (b)(2) and (c)(3) in the Rule and to refer in the Comment to other rules and standards. The motion passed unanimously. The Commission agreed to delete the brackets in paragraph (b)(2).

A member suggested incorporating into (b)(2) the idea in (d)(3) that a lawyer may draft a settlement resulting from the ADR process but may not otherwise represent the parties. The Commission felt that the point did not need to be specifically made in the black letter Rule because (b)(2) requires the lawyer to explain the difference between the lawyer's role as a neutral and a lawyer's role in representing a client.

A member proposed adding back in (b)(1) and (c)(1) [disclosure or acquisition of any interest or relationship that is likely to affect the lawyer's impartiality]. A member responded that this area should be left to developing law. Another pointed out that impartiality is an issue for all neutrals, not just lawyers. The Reporter added that some of what is covered in (b)(1) and (c)(1) is in Rule 8.4.

A member suggested that the Reporter consider a new title for the Rule.

A member suggested limiting (c)(3) to the prohibition on giving legal advice, eliminating the reference to "legal information." The Reporter noted that there is some confusion among arbitrators about the difference between legal advice and legal information. The Commission suggested that the discussion about legal information be added to the Comment.

A member asked whether (d)(2) should be included in the Rule. The Commission agreed that the substance of (d)(2) was not unique to lawyers.

VII.  Alternative Dispute Resolution: Miscellaneous Amendments

The Commission reviewed the Reporter's memorandum of April 18, 1999 outlining five possible amendments to the Model Rules relating to ADR.

1. The Commission approved an addition to the Preamble recognizing that lawyers perform important ADR functions.

2. The Reporter noted that a number of commentators have recommended that the Rules specifically address the need for lawyers to advise clients of suitable ADR options. The Commission was opposed to such an amendment because it was more in the nature of best practice than a disciplinable offense.

3. The Reporter advised the Commission that she has also received comments recommending that "tribunal" be defined to include ADR processes conducted under the auspices of a court. Several members felt that the duty of candor was different in arbitration and in mediation, which is more like a settlement process. Other members felt strongly that lawyers have a duty to be honest at all times. An observer noted that the difference between Rules 3.3 (Candor to the Tribunal) and 4.1 (Truthfulness in Statements to Others) is that Rule 3.3 trumps Rule 1.6 and Rule 4.1 does not. The Reporter observed that with the Commission's proposed changes to Rule 3.3, that would not be true. A suggestion was made to redraft Comment [1] of Rule 3.3 to include court-annexed ADR. The Commission agreed that court-annexed ADR would be covered in Rule 3.3, while other ADR would be treated in Rule 4.1.

A member suggested that the Reporter consider creating a new Rule 4.X even if it is similar to Rules 3.3 and 4.1. He suggested that Rule 2.X could be incorporated into the new Rule 4.X.

4. The Reporter stated that she has also received a recommendation that Rule 4.1 be amended to delete the word "material." The Commission agreed to review this issue after further discussions on Rule 3.3.

5. The Reporter stated that some members of the ADR community have suggested the following amendment to the Comment to Rule 1.3: "A lawyer is not bound to press for every advantage that might be realized for a client, particularly in nonadjudicative forms of dispute resolution where excessive contentiousness may not further a client's interests in seeking a mutually agreed upon resolution of a dispute." The Reporter indicated that she agrees that "excessive contentiousness may not further a client's interests," but would rather not qualify that statement by any suggestion that it is limited to nonadjudicative dispute resolution. Several members felt that this recommendation is in the nature of best practice. The Commission suggested that the Reporter draft something for the next meeting.

VIII. Rule 1.11

The Reporter pointed out that the current draft treats a move from one government agency to another just like a move from government to private practice. He asked if the Commission wanted to review this change in the Rule [paragraph (a) was changed from "...shall not represent a private client..." to "...shall not represent any other client..."]. A member felt that whether moves between government offices subject to the same authority (e.g., the federal government) were moves to a "new client" was a question of law, not of ethics. A Reporter pointed out that Comment [5] in the draft says only that it may be appropriate to treat moves from one government agency to another as moves to an "other client" for purposes of this Rule.

The Reporter next pointed out that, aside from the question of imputation, the language in paragraph (c) relating to a move from private practice to government, is not exactly parallel to paragraph (a), the move from government to private practice. He noted that in both paragraphs disqualification applies only to the "matter" on which the lawyer worked. He referred to page 6 of the Reporter's Observations which discussed this issue: "...[I]n (a), the lawyer is disqualified if she had 'participated personally and substantially' in a matter, while in (c), the lawyer is personally disqualified if she 'had represented a client or obtained information protected by Rules 1.6 and 1.9(c) that is material to the matter' while in private employment. The amount of disqualifying information would almost certainly be greater in (c) than in (a). The justification for the distinction is that (a) is based on federal statutory language that we have gotten used to in describing post-government-employment limitations, while (c) uses terms we have long used in dealing with private clients. The prohibition in (c) has already been cut back by limiting it to information 'material to a matter' rather than relevant in general to the lawyer's government work. Furthermore, there is no imputation now in a government agency, so although the personal disqualification is greater, the burden put on the agency is less than the burden put on private firms by this rule."

The Commission agreed with the current draft on this point.

The Reporter also noted that Rule 1.11 now specifically covers all aspects of moving between government and private practice. There previously was confusion about whether Rule 1.9(a) applied when a lawyer moved from private practice to government. A member reiterated her position that Rule 1.9(a) should apply to former government lawyers and should be incorporated into Rule 1.11. The Commission agreed to reconsider the issue after the draft is circulated for comment.

A member objected to the deletion in the current draft of "or reasonably should know" in paragraph (b). [The phrase was included in the previous draft but is not in the current Model Rule.] He felt that lawyers who act recklessly would not be covered by the Rule if the phrase was deleted. A Reporter pointed out that the same problem arises wherever the knowledge standard is used in the Rules. A motion to include the phrase in the Rule was defeated.

A member asked why "know or reasonably should know" was deleted in lines 22 - 23 of paragraph (b). The Reporter indicated he felt that the addition to the current Rule was not necessary and would not change the result. The member noted that a firm that does not receive accurate information from a new lawyer could be bitten by this Rule.

A member raised two issues with respect to Comment [3]. First, the member felt that by not referring to paragraph (c) in the Comment there is the implication that paragraph (c) does not apply to representations that are not adverse to former clients. Second, the member felt that the Comment also implies that Rules 1.6 and 1.9(c) obligations do not apply to former government lawyers now in private practice. A Reporter indicated that the Comment should clarify how those obligations apply to former government lawyers.

A member questioned the use of the term "regularly employed" in Comment [2]. The Reporter stated that the term was intended to clarify that the Rule applies only to regular government employees. The Commission felt that the term "employee" should be sufficient. Also, in the last sentence of Comment [2], the Commission agreed that "lawyers who are employed by" should be changed to "lawyers who are officers of or employed by."

The Commission agreed that the Rule should be circulated for public comment after a final review by the Commission on the listserv.

IX.   Rule 1.14

The Reporter indicated that the current Rule does not provide sufficient guidance to lawyers, especially in situations where a client is impaired but does not need a guardian. She stated that paragraph (b) identifies protective measures a lawyer can take when the lawyer reasonably believes the client cannot act in his own interest. She noted that the current Rule seems to imply that seeking guardianship is always the best choice while the new draft emphasizes taking reasonably necessary protective action, including seeking the appointment of a guardian. The Reporter provided for the Commission's consideration an alternative to paragraph (b) that provides greater specificity regarding individuals or entities the lawyer might contact. She felt that the alternative provided less flexibility for the lawyer. Two observers, Frank Johns, President of the National Association of Elder Law Attorneys, and Nancy Coleman, Director of the ABA Commission on Legal Problems of the Elderly, agreed that their groups favored less specificity and more flexibility.

In response to a question, the Reporter stated that the intent of paragraph (c) is to indicate the extent to which the lawyer is impliedly authorized under Rule 1.6 to reveal information. It is intended as a caveat to lawyers that they may be revealing information to persons with serious conflicts of interest.

Several members pointed out that lawyers can consult with people in the course of any representation. They felt that the real caution to lawyers was to be careful what they reveal, not who they consult. They also felt that the draft implies that something is being added to Rule 1.6. A member suggested that the caution about revealing confidential information may be especially important in cases of client incapacity but that the point should be made in the Comment with an appropriate example.

A member pointed out that Comment [5] is more of a warning than an authorization. He suggested that the last statement, regarding assistance from a diagnostician to determine the extent of the client's incapacity, should be made first.

The Commission discussed the need for consistency in terminology regarding clients who are disabled. An observer indicated that the international convention is to use the term diminished capacity clients. A member felt that the Comment should explain that capacity is a continuum and that in dealing with problems the least restrictive alternative should be sought.

A member wanted to clarify that family members of the client are not also clients but may be agents. The member felt that the Comment should explain what happens to privileges or confidences if family members or others are present at a client meeting.

A member argued against including paragraph (c) in the Rule. He indicated that the paragraph seems to limit what a lawyer could otherwise do. He felt that it was preferable to avoid reaching into practice areas, especially since many state laws are implicated.

A member voiced his concern that the Rule does not provide sufficient guidance to lawyers. He felt that the Rule was not clear about whether the lawyer was supposed to consult and then make the ultimate decision, or consult and leave the decision to others. Other members noted that, in addition to confidentiality issues, scope of representation and conflicts problems were also implicated. A member pointed out that many of these issues are discussed in Ethics Opinion 96-404.

A member stated that the Commission should not make extensive changes to the Rule. He stated that it is useful to make the point that lawyers may seek a guardian in appropriate circumstances because some lawyers feel that such a step is disloyal. He added that the Rule cannot be written for specific cases.

X.   Rule 1.5

The Reporter asked the Commission to reconsider its decision to require that a separate fee agreement be executed with respect to every new matter on which a regular client consults a lawyer. He felt that such a requirement was neither practical nor desirable. A motion was made and seconded to return to the Model Rule formulation of the first sentence of paragraph (b), with the deletion of the word "preferably." The motion passed unanimously.

A motion was made and seconded to require that any changes in the basis of the fee must be in writing. The motion passed unanimously. A member suggested that the Comment clarify that the writing need not be signed by the client.

An observer stated that this Rule is rarely used in discipline. He felt that a more objective standard than "reasonable" should be used. He suggested "excessive". A Reporter felt that a change from "reasonable" to "excessive" would be perceived negatively by the public. Another Reporter pointed out that the Code defines "excessive" as "unreasonable." The Commission agreed that "reasonable" was the better term.

A member felt that the real problem is whether contingent fees are reasonable. He felt paragraph (a)(8) was not sufficiently precise regarding the degree of risk. Other members felt that it was a mistake to try to quantify the risk and that it was too easy to look at contingent fees with hindsight. The Reporter pointed out that the skill of the lawyer is only one factor. Another Reporter suggested that Comment [2] be enhanced by stating that not only paragraph (a)(8) applies to contingent fees. The Commission agreed.

A member suggested that in the fourth sentence of Comment [1] the word "describe" should be changed to "include."

A motion was made and seconded to change "should" to "shall" in the second sentence of Comment [2]. A member pointed out that it is not appropriate to prescribe something in the Comment that is not prescribed in the Rule. A Reporter added that it would not be accurate to make the change because some courts do take a retrospective look at fees. The motion was defeated. The Commission agreed with a suggestion to change "should" to "should ordinarily be."

A motion was made and seconded to delete the third sentence of Comment [2]. The motion passed. A motion was made and seconded to delete the fourth sentence of the Comment. A member felt that the sentence was helpful in reminding lawyers that contingent fees are not just subject to contract law. He added that an example - perhaps one using the model of advance waiver of conflicts - might be helpful. The motion to delete the sentence was defeated. A Reporter added that when a lawyer tries to collect a fee, it won't be unethical unless it is clear that the lawyer should not have gone after the fee. The Reporter felt that it was preferable that the rules for collection and discipline be uniform on this point.

The Reporter asked if the Commission wanted to restore to the Rule the Code provision that lawyers must at least give clients an alternative to a contingent fee arrangement. He noted that present Comment [3] seems to advocate such a position but that language was deleted from this draft. A member noted that some lawyers only do work on contingency fees. Another asked if a lawyer should be disciplined for not offering an alternative. Several members were troubled by the use of the word "should" in this context because the point seems to be more of a "best practice" comment.

A member stated that the language in the fourth sentence of Comment [1] regarding written fee agreements was unreasonable. A Reporter added that the use of "should" in this sentence was again a "best practice" comment and should be avoided. A member added that the requirement of a writing is already controversial and it is not helpful to add numerous details. The Commission agreed that the writing requirement should include the scope of the representation and the basis of the fee. The Commission also agreed that paragraph (b) should cover fees and disbursements.

A member voiced his concern over the statement in Comment [5] that joint responsibility for the representation requires each lawyer to assume civil liability for any malpractice of other lawyers in the matter. A member responded that the Comment only clarifies the intent of the original Rule. A motion to delete the sentence failed for lack of a second.

A member asked why the reference to Rule 5.1 was deleted in Comment [5]. The Reporter responded that since there is not a supervisory relationship between the lawyers in the joint representation, Rule 5.1 is not applicable.

The Commission agreed that the Rule should be circulated for public comment after a final review by the Commission on the listserv.

XI.  Rule 1.15

The Reporter stated that the main issue in this Rule is what to do with property of a client or third person if there is a dispute over money held by the lawyer. He noted that the only change in the Rule is that the lawyer need not have an interest in the money. An observer said the Rule may present a problem for a lawyer acting as an escrow: if the lawyer pays out the money in accordance with a provision in the escrow agreement, would the lawyer be violating Rule 1.15? The observer provided language to the Reporter for consideration. A member suggested that the Comment refer to interpleader. The Commission decided to change the word "jurisdiction" back to "state," and to define "state" in the Terminology Section.

The Commission agreed that the Rule should be circulated for public comment after a final review by the Commission on the listserv.

XII.  Rule 1.2

The Reporter pointed out that some of the concerns with current Rule 1.2 are that it is under-inclusive with respect to decisions that must be made by the client; it is unclear regarding the difference between "objectives" and "means;" and it is out of step with the Restatement. He stated that the current draft attempts to deal with these concerns.

A member questioned the addition of "filing an answer" in paragraph (a). This led to a discussion about the main thrust of this paragraph and its relationship to Rule 1.4. The Reporter stated that the idea was to discuss issues related to consultation in Rule 1.4 and to discuss responsibility for decision-making in Rule 1.2. He added that the reference to consultation in current Rule 1.2 is confusing. The new draft also tries to clarify that a lawyer is free to take action reasonably calculated to accomplish the client's objectives unless the client has given contrary instructions. Several members felt that the draft should take into consideration the fact that the lawyer has inherent authority to do certain things.

A member suggested that the title of the Rule should be in accord with the operating principle that authority always belongs to the client. A Reporter added that a problem with the current Rule is that it implies that the lawyer controls the means and the client controls objections when in fact the client has ultimate control over both. The member added that the real distinction is when you have to consult the client and when you do not.

A Reporter suggested that the analysis should be that 1) where a lawyer does not have implied authority the lawyer must go to the client for a decision, and 2) for other decisions the lawyer is impliedly authorized to act unless the client instructs the lawyer otherwise. The Reporter added that paragraph (a) would delineate the things that are not impliedly authorized.

A Reporter pointed out that Comment [2] attempts to explain that analysis. He added that where the lawyer is impliedly authorized to act, the lawyer must keep the client informed. A member added that this analysis is in accord with the fact that the client has ultimate authority.

A member felt that there may be some timing issues with respect to consultation in non-litigation practice. The Reporter said that issue should be dealt with in Rule 1.4.

A member stated that moving discussion of consultation to Rule 1.4 was a good idea. He felt that Rule 1.2 must be intentionally ambiguous because there are some means the client cannot veto or insist upon. He added that it is often difficult to distinguish between objectives and means. He suggested that the discussion of criminal practice be deleted from the Rule. He observed that it was added because of its sensitive and recurring nature but is not necessary. He also felt that the last sentence regarding implied authority was not necessary because it was only a restatement of the formulation in Rule 1.6. A member suggested that the "implied authority" exception in Rule 1.6 ought to be treated as an example of an action reasonably calculated to accomplish the client's objectives as authorized in Rule 1.2.

Another member observed that this is an agency rule related to a discipline rule. She felt that it was important to remind lawyers that there are certain things that the lawyer must check with the client on. She suggested that the Rule state in the first sentence that, subject to Rule 1.4, the lawyer may take any action reasonably calculated to accomplish the client's objectives. She said that the next sentence would list the decisions reserved to the client. A Reporter felt that the Rule must also discuss client instructions because the current Rule implies that the lawyer can ignore client instructions except those in the enumerated areas. She added that Rule 1.4 does not indicate who makes decisions. A member added that the Rule should not use terminology different from that in Rule 1.6.

A Reporter suggested that there are three principles involved: implied authority; except for certain enumerated decisions; and except for client instructions. The Commission discussed the situation where a client instructs the lawyer to do something the lawyer disagrees with (e.g., to seek summary judgment or to refrain from asking a witness a particular question.) The Commission agreed that the lawyer can withdraw or abide by the client's decision (and memorialize the decision with the client.)

Another member observed that it is not always easy to tell in a given situation if the lawyer is impliedly authorized to act or if the lawyer must consult and abide by the client's decision.

The Commission asked the Reporter to redraft Rule 1.2 in combination with Rules 1.1, 1.3 and 1.4 for the next meeting.

The Commission next discussed proposed paragraph (x). A member felt that the point was self-evident and need not be included. A Reporter noted that the Rule allows a lawyer to refuse to engage in conduct where the lawyer reasonably believes but does not know it is unlawful or prohibited by the Rules. Another member suggested that the reporters take this point into consideration as a fourth principle as they redraft the Rule. A member felt that the paragraph gives the lawyer latitude to disregard the client.

The Commission then discussed paragraph (c). A member reminded the Commission about the need to have an expanded definition of "writing" in the Terminology Section. This led to a discussion of what would trigger a writing. One member observed that a writing would not be good if it discourages lawyers from experimenting with new ways to offer assistance. An observer from NLADA indicated that his group intends to convene a working group on ethics issues. He felt that a writing is an important consumer protection but that it is important to reach out to new technologies. He stated that it may be preferable to have a requirement that the lawyer show that the client understood. Another observer suggested language such as, "a memorialization appropriate to the circumstances." The Commission took a straw vote on whether to require a writing. All members were opposed to a writing. A member suggested that the Comment clarify that this does not just apply to litigation. Another member suggested that comments [5] and [6] be expanded to cover these issues.

A member asked if Rule 1.5 would require a limitation on representation to be in writing. He also wondered if Rule 1.5 would require a writing if the lawyer did not charge a fee.

The Commission agreed that current paragraph (b) should be moved to the Preamble.

XIII. Technology/Access to Legal Services

The Commission reviewed the Reporter's memorandum on Access to Legal Services and Technology Issues. The first issue in the memorandum was limited service agreements. The proposed change to Rule 1.2(c) regarding limited service agreements was discussed when the Commission reviewed that Rule. Two other issues were highlighted in the memorandum: conflicts of interest and formation of a lawyer/client relationship. The Commission discussed several conflicting policy considerations relevant to these issues: the need for pro se litigants to receive assistance of a limited nature; the need to ensure that the advice given by the lawyer is given in the context of a lawyer/client relationship; the concern of a lawyer only being partially involved; and the need to encourage lawyers to provide advice to persons of limited means. A member suggested that it might be possible to create a different set of conflicts rules for lawyers in certain situations. The Commission agreed that the requirement of competence applies no matter what limitation is on the lawyer/client relationship.

The next issue raised by the memorandum was a possible modification of Rule 5.5 to permit lawyers to assist non-lawyers in providing routine legal services. The Commission agreed that the Model Rules was not the correct place to try to deal with this issue.

The next suggestion was three possible modifications dealing with lawyers and unrepresented opposing parties. The Commission agreed with the suggestion to modify Rule 4.3 to explicitly prohibit a lawyer from providing advice to an unrepresented person whose interests are adverse to the lawyer's client. The second suggestion was to provide in Rule 4.3 that a lawyer who is engaged in negotiations with an unrepresented person shall not take unfair advantage of the person's ignorance of the law or legal procedures. In response to a question a member explained that unfair advantage would mean something like inserting illegal or unenforceable provisions in a contract. The Commission agreed to look at a draft of this proposal. The Commission disagreed with the third proposal which was to amend Rule 3.3 to require a lawyer who is appearing before a tribunal on behalf of a client whose adversary is not represented by counsel to comply with Rule 3.3(d) regarding ex parte proceedings.

The next area of discussion was fee waivers in fee-shifting litigation. The Reporter explained that the Commission had received testimony from a person advocating adoption of a Rule that would prohibit defense lawyers in a civil action from conditioning settlement on the plaintiff's waiver of their statutory entitlement to an award of a reasonable attorney's fee. The Commission felt this was a contract issue but indicated it would review a proposed draft rule from those who feel such a rule is necessary.

The Commission agreed that the remaining issues in the memorandum would be considered by the Reporter and the Technology/Access Subcommittee.

XIV.     Rule 1.18

The Commission felt that this Rule was sufficiently discussed at the previous meeting and that it was ready to be distributed for comment.

XV.     Rules 5.1 - 5.3

The Reporter explained that this draft of Rule 5.1 attempts to identify those lawyers in a firm who are "involved in management" in order to focus responsibility more clearly. He noted that in doing this, the draft moves away from the current position that all partners are responsible for firm activities. He asked the Commission which direction it would prefer. The Commission felt that the term "involved in management" was too amorphous. An observer who is a disciplinary counsel observed that he did not think the Rule was broken. He noted that while all partners are responsible, not every partner will be prosecuted. He felt that this area should be left to established practice. He added that the amendment to add law firm discipline was also not necessary. Another disciplinary counsel agreed that law firm discipline was not required from a prosecutor's standpoint. A member responded that law firm discipline seems to soften individual responsibility and should not be included.

A motion was made and seconded to return to the current Model Rule language on partner responsibility. The motion passed unanimously.

A motion was made and seconded to delete law firm discipline. A member suggested leaving law firm discipline in the Rule for discussion purposes. The Commission felt that it was better to flag the issue in the cover memorandum than to include it in the Rule. The motion passed.

The Reporter asked if the Commission approved of the new Comment [2]. The Commission liked this discussion in the Comment rather than black letter. An observer felt that it should be clear that the list was just examples.

A member suggested a change in Comment [3] from "may suffice" to "ordinarily will suffice."

A member felt that the Comments should clarify that the supervisory lawyer has responsibility in connection with the matters subject to such supervision.

A member suggested that in Comment [5], line 34, the word "knowingly" be inserted before "misrepresented." He suggested that if the lawyer would not have a duty to correct under Rule 3.3, which would be the case if the misrepresentation was not "knowing," then the supervisor should not have a duty to correct.

The Reporter explained that the proposed change to Rule 5.2 is to eliminate paragraph (b). He stated that commentators and case law agree that young lawyers cannot pass the ethical buck. An observer suggested that disciplinary counsel will continue to allow young lawyers to rely on a supervisory lawyer's reasonable resolution of an arguable question of professional duty. A member felt that it was important to alert lawyers that not every issue is an arguable question. Some members noted that this paragraph is a source of comfort for young lawyers. The Commission voted unanimously to keep the paragraph in.

The Reporter indicated that the issues with respect to Rule 5.3 are the same as the issues for Rule 5.1. A member asked the Reporter to review the language in the introductory phrase of paragraph (c).

The Commission agreed that the Rules should be circulated for public comment after a final review by the Commission on the listserv.

XVI. Rule 5.5

The Reporter explained that this draft does not attempt to define the practice of law. He felt that the present Rule does a good job of identifying the two major issues: that lawyers should not practice where they are not licensed and lawyers should not assist others to do so. The only change proposed by the Reporter is to add a Comment relating to the first point.

A member advised the Commission that the Center for Professional Responsibility has a task force looking at multijurisdictional practice. The group plans to hold a symposium early next year to discuss issues and make recommendations. He added that this Rule does not do what is needed and that Comment [1] is not supported by the black letter. Another member felt that it was important to define what is not unauthorized practice when done by a lawyer. He added that the Rule should state in black letter the things a lawyer can do. He cited several categories: pro hoc vice; associating with local counsel; and house counsel. He added that a fourth category would explain the extent to which an out-of-state lawyer can engage in matters locally if the matter arises out of or is reasonably related to the lawyer's practice in his home state. He also observed that this Rule does not attempt to cover the unauthorized practice of law by non-lawyers and the Comment should so state. The Commission agreed that paragraph (a) of the Rule should be expanded along the lines suggested.

XVII. Rule 8.5

The Reporter noted that this Rule was adopted a few years ago and was somewhat controversial at the time. The current Rule provides that a lawyer is subject is discipline only where the lawyer is licensed, and the Rule limits the choice of law to the rules of the admitting jurisdiction in which the lawyer principally practices. The Reporter stated that the draft proposal is to extend disciplinary authority to jurisdictions where the lawyer is practicing even if the lawyer is not admitted there. A member noted that the language in this Rule should agree with Rule 5.5. An observer asked whether the term "judicial proceeding" meant in connection with litigation. A Reporter stated that once a proceeding is filed, the jurisdiction in which it is filed governs; prior to that there is a policy issue. A member voiced his opinion that it was not possible to provide any more guidance than this Rule currently gives. A member observed that advertising, especially on the Internet, is a major concern under this Rule. He suggested that there might be some special rules for advertising that could provide a safe harbor if advertising is only directed to a particular jurisdiction. The Reporters agreed to consider this suggestion.

XVIII.    Rule 4.4

A member asked if the lawyer could make a copy of a document under Rule 4.4(b). The Reporter responded that the Rule permits the lawyer to make a copy in the situation where the lawyer does not realize until after reading the document that it was mistakenly sent. She added that the Rule intends that the receiving lawyer give notice to the sending lawyer in that situation so that lawyer will have an opportunity to prevent the receiving lawyer from doing something with the document. A member observed that both lawyers should have the opportunity to seek a court order regarding the use of the document. He also felt that the term "other legal restraint" in Comment [3] was vague.

A member noted that Comment [1] and paragraph (b) must be consistent about the fact that this is a rule of intra-professional courtesy and does not apply if the document came from a nonlawyer. A member asked about documents sent intentionally by someone such as a disgruntled employee. The Reporter indicated that this Rule did not intend to address that issue. A member suggested that the Comment could indicate that this Rule does not address that type of situation.

A member thought that the idea that a lawyer also cannot go after information that is subject to the evidentiary privilege of another is lost in the Comment. Another member agreed that the concept should be in black letter but stated that the language in the Comment is preferable than the black letter language in the previous draft. He felt that the work product concept should be included.

An observer felt that the Comment should state that this Rule does not apply to junk mail. A member thought the Comment should clarify that the lawyer cannot seek information about privileged information from a person who does not hold the privilege.

A member suggested that the Rule be limited to providing notice to the sending lawyer. He added that the Comment could indicate that ethics opinions have gone further. He felt that any further permutations should be left to decisional law. Another member noted that the operation of this Rule is not affected by whether or not the document is privileged since this is a rule of professional courtesy. Another member asked if the Rule is intended to cover inadvertent disclosure of documents in discovery. He felt that was a bad idea because there are so many factors unique to the discovery process. The Reporter felt that if the first sentence of paragraph (b) is not retained the subject should not be addressed at all. The Chair suggested that the Reporter draft two alternatives for the Commission to consider.

An observer suggested that a rule on this subject is needed because ABA Ethics Opinion 92-368 was incorrect.

A motion was made and seconded to include the obligation to notify the sender in black letter and to address various responses in the Comment. A motion to amend that motion to provide that when the lawyer has advance notice that a document was inadvertently sent the lawyer must send the document back without reading it was defeated with only two votes. The main motion passed. A member felt it was important that the Rule provide a safe harbor for the lawyer who returns a document without reading it. The Chair appointed Geoff Hazard and Susan Martyn as a subcommittee to work on this Rule with the Reporters. The Commission agreed to try to resolve the issues on the listserv.

XIX. Rule 8.4

The Reporter informed the Commission that the Section on Intellectual Property Law has been requesting changes to the Model Rules to clarify that "lawyers acting as, or supervising investigators do not violate the Model Rules when using deception in order to obtain evidence of actionable legal violations." The concern is primarily for testers who pose as customers in unfair competition, fair housing and EEOC investigations. The Section proposed an addition to the Rule 4.1 Comment to the Standing Committee on Ethics, which in turn concluded that such additional language would not suffice because of Rule 8.4(c). The Ethics Committee has proposed to Ethics 2000 that Rule 8.4(c) should be amended by adding the language modifying "criminal act" in paragraph (b).

A member felt that this addition limits the Rule. Another member wondered if this change would limit disciplinary counsel. Another member remarked that the tester situation is just a special case of Rule 4.2 which would not be applicable if the lawyers were only advising the investigators rather than supervising them.

A motion was made and seconded to delete the addition to paragraph (c) with the suggestion that the idea could be covered in the Comment. Several members felt that the tester situation should be covered in Rule 4.1. Others suggested that it was awkward to suggest that certain kinds of deceit do not reflect badly. The motion passed.

A motion was made and seconded to delete Comment [1a] and to deal with the issue in the 4 series of rules. The Commission agreed that the tester issue should not be addressed in Rule 8.4. The Commission asked the Reporter to draft language for Rule 4.1 for consideration. The Commission also suggested that language be added to the Comment on Rule 8.4(a) to distinguish between improperly doing something through the act of another person and advising that person of acts that the person is lawfully entitled to undertake.

A member suggested that paragraphs (g) and (h) be combined and that the bracketed language in paragraph (g) be eliminated. The Commission discussed whether to propose this as a black letter rule or to leave it in the Comment. Several members felt that after the long history of attempting to add the Comment to this Rule it would be politically ill-advised to add this to black letter. Others felt that this was an important concept to include in black letter. A Reporter pointed out that prior iterations, including the Comment language, look at perceived state of mind while this proposal focuses on objective behavior. The Commission agreed that the two paragraphs [without the brackets in paragraph (g)] should be combined in black letter with supporting commentary. An observer noted that the California rule requires the exhaustion of all other remedies. The Commission felt that this should be left to the discretion of disciplinary counsel.

XX.  Work Plan

Chief Justice Veasey reported that he announced at the President's breakfast the Commission's intention to circulate a preliminary discussion draft in October 2000.

The Commission discussed the need to spread the word about its work and to encourage entities and individuals to provide comments. Members suggested continuing the hearings and continuing to provide information on the Internet. The Chair appointed a subcommittee to consider new ways to inform people about the Commission's work. The subcommittee members are Larry Fox, chair, Lucian Pera, and Susan Martyn.

The Commission decided that the deadline for comments for the next group of Rules that are distributed for comment will be approximately March 1, 2000 depending on how quickly the Rules are posted.

XXI. Michael Franck Award

At the close of the meeting on Friday afternoon, the Commission recognized Robert O'Malley, the recipient of the 1999 Michael Franck Award for Professional Responsibility. The members of the Commission unanimously requested that the minutes reflect their congratulations on this well-deserved honor. Chief Justice Veasey thanked Mr. O'Malley for the enthusiastic and valuable assistance he has given the Commission. The Commission adjourned to attend the award presentation ceremony. .

XXII. Future Meetings

The Commission's next meetings will be October 15 - 17 in Chicago and December 10 - 12 in Amelia Island, Florida.

Respectfully submitted,

Charlotte K. Stretch
Susan Campbell

MEETING OBSERVERS

Loretta Argrett, Standing Committee on Ethics and Professional Responsibility
William T. Baker, American Insurance Association
John Berry, State Bar of Arizona
Terry Brooks, Standing Committee on Legal Aid and Indigent Defendants
Hon. Samuel L. Bufford, Los Angeles County Bar Association
Russell Carlisle, National Academy of Elder Law Attorneys
Chief Justice Harold Clarke
Nancy Coleman, Commission on Legal Problems of the Elderly
Robert Creamer, Attorneys' Liability Assurance Society
Steve Csontos, Department of Justice
Robert Cummins, Section of Litigation
Mary M. Devlin, Standing Committee on Professional Discipline
Robert F. Drinan, Standing Committee on Professionalism
Bryant Garth, American Bar Foundation
Mark J. Harrison, Association of Professional Responsibility Lawyers
Noel Hensley, Southwestern Legal Foundation
Frank Johns, National Academy of Elder Law Attorneys
Diane Karpman, Beverly Hills Bar Association
Chuck Kettlewell, Association of Professional Responsibility Lawyers
Joseph R. Lundy, Attorneys' Liability Assurance Society
William McCormick, National Academy of Elder Law Attorneys
Robert E. O'Malley, Attorneys' Liability Assurance Society
William Overman, National Academy of Elder Law Attorneys
George Overton, Chicago Bar Association
Karen Phillips, Attorneys' Liability Assurance Society
Brian Redding, Attorneys' Liability Assurance Society
Bruce S. Ross, Section of Real Property, Probate and Trust Law
Phyllis Rubinstein, Section of Real Property, Probate and Trust Law
Don Saunders, National Legal Aid and Defender Association
Sean SeLegue, State Bar of California
William Smith, National Organization of Bar Counsel
Jonathan A. Weiss, Legal Services for the Elderly
Thomas G. Wilkinson, Pennsylvania Bar Association
Doug Yarn, Section of Dispute Resolution
Richard Zorza, Open Society Institute