CENTER FOR PROFESSIONAL RESPONSIBILITY
COMMISSION ON EVALUATION OF THE RULES
OF PROFESSIONAL CONDUCT
MINUTES
Friday, February 16 - Saturday, February 17, 2001
San Diego, CaliforniaCommission Members Present:
E. Norman Veasey, Chair
Lawrence J. Fox
Albert C. Harvey
Geoffrey C. Hazard, Jr.
W. Loeber Landau
Margaret C. Love
Susan R. Martyn
Richard E. Mulroy
Lucian T. Pera
Laurie D. ZelonLiaison:
Seth Rosner, Center for Professional ResponsibilityGuests:
John E. Busch, Standing Committee on Lawyer Referral and Information Service
William E. Hornsby Jr., Commission on Responsibility in Client Development
Alec M. Schwartz, Standing Committee on Group and Prepaid Legal Services
William P. Smith III, Commission on Responsibility in Client Development
Sheree L. Swetin, Standing Committee on Lawyer Referral and Information Service
Sheldon J. Warren, Standing Committee on Lawyer Referral and Information ServiceReporters:
Nancy J. Moore
Carl A. PierceStaff:
Charlotte K. Stretch
Susan M. CampbellObservers:
See list following minutes
The Commission met on Friday, February 16, from 1 p.m. to 5 p.m., and on Saturday, February 17, from 10:30 a.m. to 2 p.m.
I. Chair’s Report
Chief Justice Veasey asked the Commission members to report on the various meetings that occurred with ABA entities. He reported that he was very pleased at the meetings he attended with the level of familiarity with the Report. He indicated that several members of the Board of Governors questioned the need for law firm discipline.
Geoff Hazard and Carl Pierce reported that the Section of Tort and Insurance Practice professional ethics committee voiced concerns about Rule 1.5(a)(8); written confirmations; the last sentence of Rule 4.1 Comment [3]; and law firm discipline. They requested that staff obtain a copy of the committee’s list of issues.
Loeber Landau and Susan Martyn reported that the Senior Lawyers Division was very pleased with Rules 1.4 and 1.14. A member at the meeting felt that the rules should address protecting a practice upon a lawyer’s death in addition to selling a practice.
Loeber Landau and Carl Pierce reported that the Section of Government and Public Sector Lawyers was concerned about the use of "substantially related" in Rule 1.11. The Section consists of a mix of city, military and district attorneys and attorneys general.
Geoff Hazard and Nancy Moore stated that the Section of State and Local Government Lawyers had similar concerns. They were also concerned with the requirement of confirmation in writing in Rule 1.11. The Section will send written comments and we will provide them with something that better explains the changes that have been made.
Laurie Zelon and Susan Martyn reported that the Section on Individual Rights and Responsibilities was concerned that prosecutorial misconduct in death penalty cases is not being prosecuted. They also indicated support for the changes to Rule 4.2 and will support this in the House.
II. Rule 7.2
The Commission welcomed members of the Standing Committees on Group and Prepaid Legal Services and Lawyer Referral and Information Service and the Commission on Responsibility in Client Development to discuss issues related to Rule 7.2. The Reporter explained that these issues have arisen because a variety of organizations have emerged to facilitate matching lawyers and clients.
During the discussion, the following concerns and issues were mentioned:
Clarify the definition of advertising.
Distinguish between fee-splitting and paying for advertising-related services.
Define what is a group advertising program.
Explain why group advertising is not referral.
Need to deal with the public expectations of what a lawyer referral service is.
Public service lawyer referral service is the term used in the Model Rules for Lawyer Referral.
Controversy over the requirement of open panels.
States vary in development of advertising and lawyer referral. Should this be recognized?
Abuses can be handled in 7.1 and 8.4.
Need to expand concept of advertising into the Internet, etc.
Need to explore the problem of people misleading through lawyer referral services.
The term "advertising related services" is problematic.
The Commission asked the representatives of the three entities to provide additional information to the Reporter and asked the Reporter to draft a new proposal for the March meeting taking into consideration the discussion at this meeting.
A member moved that the requirement in Rule 7.2(c) that the office address of at least one lawyer or the law firm be included in any communication be deleted. The motion was seconded and was defeated by a vote of 3 to 4.
III. Client Bill of Rights
The Commission agreed that the Comment to Rule 1.4 should mention that some states have added certain requirement in the nature of a Bill of Rights, especially with regard to contingent fees. The Commission also felt that this issue is mainly one of public education.
The Reporters will add something to the Talking Points about the need for the ABA to take a lead role in providing public education in this area.
IV. Rule 6.1
A member suggested that the Talking Points on Rule 6.1 also state that the ABA should do more in the area of pro bono efforts.
V. Rule 3.2
The Commission next considered Richard Zitrin’s proposal to add a new Rule 3.2(b). The Reporter noted that when the Commission previously discussed this matter it felt that it was better to have a court rule regulating the parties.
After discussion the Commission unanimously agreed that the ethics rules were not the vehicle for solving this problem.
VI. Rule 1.0
The Commission discussed whether the following sentence should be added in one of the comments on screening in Rule 1.0. "Ultimately, the success of any screen will depend on the integrity and good faith of the lawyers who implement it." The sentence was previously in the Comments to Rule 1.11, but the Reporter proposed moving it when the Commission added screening to Rule 1.10. Several members felt that the sentence introduced an element of subjectivity that was not helpful. Others felt that there should be a presumption that lawyers will act in good faith. Another felt that the sentence questioned the validity of the screening mechanism. He felt that the mechanisms do preclude the bad lawyer from giving information because others would have to be complicitous. While many members agreed that the statement was true, the Commission agreed not to add the sentence. A member volunteered to redraft the sentence.
A member noted that the words "of disclosure" need to be added in the first sentence of Comment [8].
VII. Writing Requirement
A member raised a question about the requirement that the written statement indicating client consent must include the lawyer’s disclosure (e.g., Rule 1.7). He felt that disclosure can result in embarrassment to the client. He moved that the last sentence of Comment [20] in Rule 1.7 be deleted. The Commission agreed to take out that sentence because it might not be necessary to put so much detail into the writing.
Another member raised the issue of timing in Rule 1.7. He indicated that the black letter rule suggests that the lawyer cannot proceed until the consent has been confirmed in writing, whereas the comment states that the writing may be sent within a reasonable time after the consent has been obtained. The Commission agreed to add language to the definition of "confirmed in writing" in Rule 1.0 to so that the language regarding the flexibility of the timing will appear in black letter rather than merely in a comment.
VIII. Limitation on Scope
The Commission next addressed whether limitations on scope and pro bono representations need to be in writing. Several members stated that they were not clear on whether the requirement of a written agreement in Rule 1.5 only applied if a fee was being charged. A member suggested that no writing be required for matters covered under Rule 6.5. Another member observed that the issue of fees is irrelevant without discussing scope. A member added that Rule 1.2 only requires consent to the limitation on scope. Another felt that it was important not to discourage pro bono work. A member suggested that a small minimum amount for fees be added to the rule in brackets. The brackets would allow for states to have different minimum requirements. A member noted that the representative of the legal services community who spoke at the hearing requesting an exception to the requirement of a writing in all cases agreed that the minimum could be as low as $100.
The Commission agreed to address this again at its next meeting.
IX. Rule 1.3
The Commission reviewed a suggestion by a member to add new language prior to the final sentence in Comment [3]: "Unnecessary delay is also likely to contribute to the public's loss of confidence in the judicial system. See Rules 3.2 and 8.4(d)." The Commission agreed to add the language with the following changes: "Unnecessary delay may diminish public confidence in the judicial system. See Rule 3.2."
Also, the Commission agreed to insert the word "ordinarily" before "may have" in the third sentence of Comment [1].
X. Rule 1.5
The Commission discussed concerns voiced by some commentators that the writing requirement will provide a basis for discipline or for denying fees even when there was no misunderstanding on the client's part. A straw vote on whether to add something to the Comment of Rule 1.5 indicated 2 for and 4 against the idea. An observer volunteered to draft something for possible inclusion in Rule 1.0.
XI. Rule 1.8(j)
The Commission discussed comments that this rule provides no guidance as to its application in the context of corporate clients. Another observer volunteered to re-draft something for the Commission’s consideration.
XII. Rule 1.9
The Reporters will draft revised Commentary for the next meeting.
XIII. Rule 1.10(c)
Several members noted that some commentators have objected to this new provision. A member added that the provision sounds like an "appearance of impropriety" rule. Another added that the provision will require extensive litigation on whether a lawyer’s involvement constituted a "substantial relationship." Another noted that some of what this provision was intended to cover would already be covered in Rule 1.7. An observer indicated that lawyers do not think of Rule 1.7 in this context. A member suggested that a Comment in Rule 1.7 might be necessary. The Commission agreed that this will be discussed in Charleston.
The Reporter indicated that she will add a reference to Rule 1.8(k) in the Comment to Rule 1.10.
XIV. Rule 3.3
A motion to delete the last sentence of Comment [8] was defeated with a vote of 3 to 5.
XV. Rule 3.8(d)
The Commission agreed to postpone discussion on this topic to the next meeting.
XVI. Rules 5.1 and 5.3
In light of the number of comments the Commission has received regarding law firm discipline, a member suggested that the Reporters review the cases on law firm discipline in New Jersey and New York and determine if the same result could have been reached without the provision regarding law firm discipline.
XVII. Rule 5.5
The Commission was in general agreement that it should continue with its recommendations on Rule 5.5, leaving the Multijurisdictional Practice Commission to go further if they so choose.
A member noted that there was an ambiguity in the language regarding whether the matter is related to the practice or to the client. A member suggested deleting the terms "practice" and "representation" and using the term "substantially related".
A member suggested that a temporal limitation be placed on in-house lawyers in Rule 5.5(b)(2)(i). A member felt that with no time limitation in this provision, in-house lawyers are never required to support the activities of the bar in the jurisdiction where they are practicing. Several members felt that courts could require in-house counsel who are not admitted in the state to register and pay bar dues. Others noted that it is difficult to make an argument that in-house counsel need to be regulated for the protection of the public. A motion was made and seconded to leave (b)(2)(i) unchanged and to make slight revisions to (b)(2)(ii) as discussed above. The motion passed 4 to 3.
The Commission agreed that Rule 5.5 will be more extensively discussed in Charleston.
XVIII. Rule 8.1
The Commission agreed to delete the new language at the end of Comment [3].
XIX. Rule 8.3
The Commission agreed that Rule 8.3(c) should be modified so that a relationship protected in (c) is treated as though it were an attorney-client relationship.
XX. Issues for Charleston Meeting
The Chair asked members to list issues they would like discussed at the next meeting and the following topics were raised:
1. reconsider the comment on advance waivers in Rule 1.7.
2. review 1.5(a)(8). The Reporter noted that since courts have interpreted the current rule to mean what the revision says, the revision is not necessary. The Commission agreed unanimously to change paragraph (a)(8) back to the original.
3. law firm discipline.
4. Rule 1.15 – consider a more direct statement on unearned fees.
5. Rule 1.15 – revision regarding bank charges.
6. Rule 2.4
7. Scope [20] - consider new language from Bob Cummins
8. Rule 1.7, comments [4] and [5].
9. concurrent majorities.
Respectfully submitted,
Charlotte K. Stretch
MEETING OBSERVERS
John Berry, National Organization of Bar Counsel
Samuel L. Bufford, Los Angeles County Bar Association
Steve Csontos, U.S. Department of Justice
Robert Cummins, Section of Litigation
Craig Enoch, Texas Supreme Court
David Hague
Harry Hardin, Louisiana State Bar
Joseph R. Lundy, Attorneys' Liability Assurance Service
Thomas Morgan, Section of Administrative Law
Robert E. O'Malley
Brian Redding, Attorneys' Liability Assurance Society
Sylvan Siegler, Section of Tax Law
Ray Trombadore, Standing Committee on Professional Discipline
Vicki Turelsky