Committee Members Present:
Chief Justice E. Norman Veasey, Chair
Lawrence J. Fox
Albert C. Harvey
Geoffrey C. Hazard, Jr.
W. Loeber Landau
Margaret C. Love
Susan R. Martyn
Lucian T. Pera
The Honorable Henry Ramsey, Jr
Seth Rosner, Board of Governors
James J. Alfini, Judicial Division
Peter Moser, SC on Ethics and Professional Responsibility
Burnele V. Powell, Center for Professional Responsibility
William Smith, National Organization of Bar Counsel
Sam Dash, CPR Governing Committee
Jerome Shestack, ABA President
Philip Anderson, ABA President-Elect
Jim Henry, CPR Governing Committee
Jeanne P. Gray
George A. Kuhlman
Susan M. Campbell
Charlotte K. Stretch
The Committee meeting was held on Friday, October 17, 1997, from 11:00 a.m. to 3:30 p.m, and on Saturday, October 18, 1997, from 11:00 a.m. to 4:00 p.m.
I. Minutes of Previous Meetings
The minutes of the Committee meetings of August 4, 1997, and August 23 - 24, 1997, and the Reporter Subcommittee meeting of September 2, 1997 were approved as submitted.
Chair Veasey welcomed Professors Nancy Moore and Carl Pierce to the meeting. He complimented both of them on the excellent memoranda they had written in preparation for the meeting, adding that the high quality of their work was strong support for the Committee's decision to engage two reporters. The Committee approved the understanding outlined in the October 3, 1997 Memorandum of Charlotte Stretch regarding outside work by the Reporters as experts in the field of ethics and professional responsibility. The Committee agreed that any disclosure memoranda from the Reporters will be filed with Chair Veasey who will share the information with any Committee members who have questions.
Chair Veasey informed the Committee that the Board of Governors will meet on October 24, 1997 and will consider the Committee's request for additional funds. Mr. Rosner will speak on behalf of the Committee. Chair Veasey is hopeful that President Shestack will also be able to obtain funding from outside sources. The Committee briefly discussed the ABA's reimbursement guidelines.
IV. Committee Structure
Chair Veasey informed the Committee that in response to the discussion at the last meeting regarding the Committee's structure and composition, he spoke with President Shestack and developed a proposal for restructuring subject to the Committee's approval. Under the proposal, the Board would increase the size of the Committee to 13, adding a public member, a representative from the federal judiciary and an in-house corporate counsel, eliminate all liaisons except the liaison from the Board of Governors, and create an Advisory Council with very broad representation.
The Committee affirmed the proposed restructuring with the following additions: 1) the Chair has the discretion to invite individuals to attend meetings to assist in the Committee's deliberations; and 2) the Advisory Council should include the broadest possible representation to assure that the process is open and is perceived as such. The Advisory Council will meet periodically with Committee members and the reporters to provide input on drafts circulated by the Committee.
V. Report of the ABA President
President Shestack shared his hope that this project will achieve more than the drafting of new rules. He hopes it will instill a pride in complying and living up to the Rules of Professional Conduct because no other profession has such high standards. He stressed the importance of Ethics 2000 as a marker for the millennium. President Shestack further reported that he has applied to the Soros Foundation for a grant for the ABA professionalism initiatives. He noted that a report on professionalism will be circulated in the near future.
VI. Proposed Work Plan
Chair Veasey asked the two Reporters to outline their different approaches to the project. Professor Moore stated that, while she and Professor Pierce are both flexible, her instinct is more minimalist - to do as little as is necessary. She is concerned about the reception the Committee will receive from the states if the Model Rules are radically changed. She would not like the final product to be something the states will not use. Professor Pierce indicated that he approaches the project from the other end of the spectrum. He drafted the revised Rule 1.1 to serve as an example of the types of changes that might be made. He would be interested in reorganizing the rules, grouping related rules, and adding new rules. He requested some guidance from the Committee.
The Committee next turned to a discussion of the Proposed Work Plan drafted by the Reporters. The Work Plan outlines the Reporters' suggestions regarding rules that ought to or might be revised, grouping them into several categories based on priority.
There was some discussion about whether the Committee should consider recommending alternatives for some rules. Some members expressed the view that the ABA should at least have a preferred view if alternatives are presented. Others suggested that providing alternatives would be helpful to the states that choose to draft an alternative formulation of a rule. One member noted that alternatives would only be appropriate for a few rules (e.g., whistle blower, imputation, client perjury, responsibility for referred cases).
Another issue that was discussed was whether there is a practical limit to the number of rules that the Committee could consider. One member suggested that the Committee would need to have a compelling reason to amend more than four to six rules, with possibly a separate document containing principles of good practice. Another felt there was still a need to review each rule. One member noted that some rules only need clarification and others need complete rethinking. Others expressed the view that the Committee should address all of the rules where there is a significant difference from the Restatement or significant variation among the states. There was a consensus that the practical limitations of what might be possible should only be considered after a complete review based on state variations, the Restatement, problem rules, and changed conditions.
As an additional preliminary consideration, one member noted the importance of thinking at all times about all of the rules and their interaction (e.g. 1.2, dealing with clients who can make decisions, and 1.14, dealing with clients who cannot make their own decisions).
The Committee focused on the order in which the Rules should be considered. After some discussion about whether to first look at Rule 1.2 (scope of representation), the Committee decided to begin its review with Rules 1.6 (confidentiality) and 1.7 (conflicts of interest). The Committee agreed to look at the derivatives of Rule 1.6 (e.g., 1.8, 3.3, 4.1, 8.3, 3.1) at a later time. They further agreed to add consideration of 1.8(i) (related lawyers) to the review of 1.7 in order to clarify the relationship between these Rules.
Mr. Smith commented that disciplinary agencies seldom prosecute for confidentiality and conflicts of interest because the public does not complain about those types of violations. The agencies receive questions from lawyers about conflicts of interests usually involving a motion for disqualification. Mr. Smith asked the Committee to consider "people" problems versus "lawyer" problems. This led to a discussion regarding enforceability of the Rules. Mr. Smith suggested that additional detail in the Rules would help good lawyers who don't know what to do understand their obligations and would make it easier to discipline the bad lawyers. He pointed out that the disciplinary agencies deal largely with unsophisticated people being taken advantage of by lawyers on the economic fringe of the profession. He added that sophisticated clients don't usually look to the disciplinary agency for relief. The Committee discussed the possibility of adding a cluster of rules in Article 5 addressing some commonly recurring problems such as abandonment (persistent non-response, non-performance), lying to clients, mishandling client funds, maintaining an acceptable conflicts checking system, and utilizing a reasonable scheduling system. The rules could contain only a general standard with reference to additional detail to be found in another document. The Committee agreed that it cannot define an appropriate a priori level of detail that should be included in the Rules because the required level of detail will vary.
The Committee discussed the need for lawyers to understand the Rules and to have personal responsibility. One member questioned why the Rules seem opaque even to sophisticated lawyers and wondered how the Rules can be made more accessible.
VII. National Conference on Professional Responsibility
At the suggestion of Mr. Fox, who chairs the Center's upcoming National Conference on Professional Responsibility, the Committee agreed to sponsor a panel at the Conference. Some members suggested that the Conference may be a good time to hold a public hearing. The Committee agreed that, if possible, it would be helpful to produce a document that people who attend the Conference can react to.
VIII. Material for January Meeting
The Committee asked the Reporters to prepare a package of materials for each rule being redrafted. The package should include:
1. The redrafted rule and comments, cast in the form of the final text;
2. A memorandum of issues considered, including significant other proposals;
3. Background information - Rule, Code, Restatement comparisons, state variations; and
4. A summary of comments received.
The Committee suggested that the memorandum of issues be drafted to serve as an advocacy piece on why the proposed change should be made. The Committee also stressed its interest in knowing what the alternatives are to any rule under consideration. Chair Veasey appointed Subcommittees to work with the Reporters in drafting. The Reporters will post their ideas or drafts on the listserv so that any Committee members may comment, but those on each Subcommittee will take the lead in commenting. The Subcommittees are:
1.6: Al Harvey, Geoff Hazard, Henry Ramsey
1.7: Loeber Landau, Margaret Love, Lucian Pera
1.8(f): Larry Fox, Geoff Hazard, Susan Martyn, Laurie Zelon
The Committee discussed the scope of what the Reporters will review for the next meeting. Professor Moore will work on Rule 1.7 and 1.8(f), and will move on to 1.8 and 1.9 as time permits. She will consider the relationship between 1.7 and 2.2 in her drafting. Professor Pierce indicated that he will circulate the Tennessee draft of Rule 2.2. The Committee requested that Professor Pierce treat civil and criminal cases separately in Rule 1.6 and look closely at the different treatment of confidentiality in the Restatement. Professor Pierce will work on Rule 3.3 if he has time after working on 1.6.
The Committee also discussed whether the Reporters should continue to draft a "best practice" section in the Comment section of the Rules. Some members questioned how much value a "best practice" section adds to the rules and expressed concern about the effect of such standards on malpractice standards of care. The Committee agreed that looking at "best practice" is helpful and a good exercise, and agreed to reconsider the issue after looking at a few more rules.
Charlotte K. Stretch