AMERICAN BAR ASSOCIATION
CENTER FOR PROFESSIONAL RESPONSIBILITY
COMMISSION ON EVALUATION OF THE RULES
OF PROFESSIONAL CONDUCT
Tuesday, September 26, 2000
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
Henry Ramsey, Jr.
Laurie D. Zelon
Seth Rosner, Center for Professional Responsibility
Nancy J. Moore
Carl A. Pierce
Jeanne P. Gray
Charlotte K. Stretch
Susan M. Campbell
The Commission held a conference call from 1:30 to 3:30 Central time on September 26, 2000.
I. Rule 6.1
At the Commission's meeting in Philadelphia the Commission voted in favor of the concept of mandatory pro bono service and then voted to reconsider that vote and to have a fuller discussion of the relevant issues. During the week since the meeting the members have shared their views on the List Serve. After brief comments the Commission voted on the motion to adopt the concept of mandatory pro bono. The vote was 6 to 6 and the Chair voted against the motion.
A member then suggested that the Rule state more strongly the premise that it is the professional responsibility of each lawyer to assist persons who are unable to pay for legal services. He suggested that part of the language in the first sentence of Comment  be moved to the beginning of the Rule. He stated that lawyers should not back away from their professional obligation but it is not necessary to have the disciplinary system enforce that obligation.
A member felt that the wording of the current Rule sounds too much like a lawyer should aspire to do pro bono work when the intent is to suggest the number of hours of pro bono work a lawyer should aspire to do. Another member felt that the new language should correct that ambiguity. A motion was made and seconded to add at the beginning of the Rule text the following language: "Every lawyer has a professional responsibility to provide legal services to those unable to pay." The motion passed unanimously with one abstention.
A motion was made and seconded to try to clarify the ambiguity regarding "aspiration" by changing the second sentence to read, "In fulfilling this responsibility, a lawyer should aspire... ." Several members felt it was better not to alter the existing language. The vote on the motion was 6 to 6 and the Chair voted against the motion. A member suggested that the Reporters draft specific language for consideration on the List Serve. Others felt it would be difficult to draft any changes that wouldn't negatively alter the structure of the Rule.
II. Preamble and Scope
A motion was made, seconded and approved unanimously to accept the proposal of the Reporters.
Rule 1.5 (Simultaneous Negotiation)
A motion was made and seconded to reject the proposal drafted by the Reporters based on the suggestion of some commentators. The proponents of the draft felt that it would serve a useful purpose similar to Rule 5.6(b). Others felt that the proposal was an attempt to make the ethics rules do something the relevant statutes did not do. The vote on the motion was 10 to 2.
III. Rule 6.5
The Commission approved the draft submitted by the Reporters.
IV. Rule 5.5
The Commission reviewed a proposed new sentence for Comment  to explain the operation of paragraph (b)(2)(iii). The members felt that it was not possible to address all of the ramifications of the Rule in the Comment and it would be better to leave the Comment alone.
A member argued that (b)(2)(i) was too open-ended and should have some kind of limits on how long in-house counsel can be in a jurisdiction without joining the bar. A motion to amend the paragraph was not seconded.
V. Rules 3.2, 3.4, 3.5, 3.7, 3.9
The Commission approved the drafts submitted by the Reporters.
VI. Rule 3.6
The Commission discussed whether to delete subparagraph (6) of Comment  but decided to leave the Comment unchanged.
VII. Rule 1.10
The Commission reviewed the September 20, 2000 draft and the September 25, 2000 amendment to paragraph (c) that had been posted on the List Serve by the Reporters. The Commission agreed with a suggestion to delete from the list of factors in Comment  the phrase, "whether the lawyer had a significant role in forming the former client's litigation strategy."
A motion to approve the draft with the suggested deletion in Comment  passed 10 to 2.
VIII. Rule 7.2
At the Commission's meeting in Philadelphia, the Commission agreed to delete the reference in 7.2(c)(2) to "legal service organization." Two ABA entities have expressed concern with that change and the change to Comment . These entities would like additional time to study the issues and make recommendations to the Commission. The Reporters suggested that the Commission reinstate the deletion in paragraph (c)(2) and modify Comment  to preserve the status quo until the interested entities have a chance to comment. The Commission agreed with the proposal.
A motion to delete the word "vendors" in Comment  was not seconded.
NOTE: Three members had to leave the conference call at this point.
IX. Rule 8.4
A motion was made and seconded to reconsider the Commission's decision in Philadelphia to delete Comment . The motion passed 6 to 4. The motion to delete Comment  failed by a vote of 3 to 6.
X. Rule 1.7
A motion was made and seconded to reconsider the Commission's vote in Philadelphia to delete the second to the last sentence in Comment . The motion passed on a voice vote. Some members felt that the reference to "unforeseeable" conflicts made the Comment too broad. Others felt that the Comment was helpful and does not say that consents to future conflicts in the circumstances described are per se effective but only notes factors to consider. The motion to delete the sentence failed by a vote of 4 to 5.
XI. Rule 1.18
A member asked if anyone was interested in making a motion to reconsider the vote to delete paragraph (d)(2). No motions were made.