CENTER FOR PROFESSIONAL RESPONSIBILITY
COMMISSION ON EVALUATION OF THE RULES
OF PROFESSIONAL CONDUCT
Saturday, November 10, 2001
Commission 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
Henry Ramsey, Jr.
Laurie D. Zelon
Burnele V. Powell, Center for Professional Responsibility
Nancy J. Moore
Carl A. Pierce
Nancy Slonim, Media Relations
Charlotte K. Stretch
M. Peter Moser, Standing Committee on Ethics and Professional Responsibility
Hon. Anthony J. Scirica, United States Court of Appeals for the Third Circuit
The Commission met on Saturday, November 10, from 9 a.m. to 5 p.m.
I. The minutes of the August 2001 meeting and the October 2001 teleconference were approved as written.
II. Rule 1.6
The Commission agreed not to seek reconsideration of the House's decision to eliminate proposed Rules 1.6(b)(2) and (3)
The Commission discussed President-Elect A.P. Carlton's suggestion that the word "may" in Rule 1.6(b) be changed to "has the right, but not the duty." Several members noted that since many rules use the term "may," using the phrase "the right, but not the duty" in Rule 1.6 would lead to inconsistency in the terminology that may in turn lead to unintended consequences in other rules. Other members pointed out that Comment  already explains the idea expressed in Mr. Carlton's suggestion. The Commission unanimously agreed to make no change in the text of Rule 1.6(b).
The Commission then discussed conforming changes that needed to be made to others rules due to the action by the House of Delegates. The Commission agreed with the Reporter's suggestion to delete the last two sentences in Comment  of Rule 4.1, but did not agree to add the suggested new language. The Commission approved the suggestion to delete the last sentence in Comment  of Rule 1.2.
III. Rule 4.2
The Chair introduced Judge Scirica, Chair of the Federal Rules Committee. Judge Scirica explained that the Rules Committee has been looking at the idea of having a uniform set of conduct rules for federal courts. He noted that some sort of "dynamic conformity" with state rules has been strongly suggested. He stated that the work of the Ethics 2000 Commission on Rule 4.2 has been very helpful in finding an eventual resolution on this issue.
The Reporter indicated that there are three pending amendments from Larry Fox on Rule 4.2. The first seeks deletion of the words "court order" in the text of the Rule; the second relates to Comment  and the third to Comment . A motion was made and seconded to make no change to the Commission's previous decision on these issues. A motion was made to amend the first motion by substituting the Reporter's alternative language for Comment . There was no second to the motion. The main motion passed with one dissent.
A member noted that the language in Comment  of Rule 8.4 is similar to the language in Rule 4.2, Comment , but is slightly different. The Commission agreed that the language in 8.4 should conform to the language in 4.2.
III. Rule 1.10
The Commission decided not to seek reconsideration of the action taken by the House on screening. The Commission unanimously approved the proposed conforming amendments prepared by the Reporters.
IV. Rule 1.18
A motion was made and seconded to add in paragraph (d) a requirement that the lawyer who receives the disqualifying information take reasonable steps to avoid exposure to more information than is necessary to determine whether to represent the prospective client. The Commission members agreed in principle with the motion, noting that courts would impose such a requirement anyway. After some discussion a motion was made a seconded to approve the following language for paragraph (d):
(d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:
(1) both the affected client and the prospective client have given informed consent, confirmed in writing, or:
(2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and
(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(ii) written notice is promptly given to the prospective client.
The motion passed with two dissents.
V. Rule 1.14
Susan Martyn reported that she has spoken with Judge Bufford, who is one of the sponsors of the California amendment on Rule 1.14. She indicated that California has narrowed its objections to three issues: they oppose permitting a lawyer to seek a guardianship for a client; they would delete the second sentence in paragraph (c); and they disagree on what rules apply when a lawyer acts both as a guardian and a lawyer.
No motions were made to make any changes to the Commission's current proposal on this Rule.
VI. Rule 3.3
The California Bar Association also has proposed an amendment to delete references to disclosure in Rule 3.3. The Commission decided to make no changes to its current proposal.
VII. Rule 5.6
The Commission agreed with the proposed change in the text of Rule 5.6(b) to clarify that the Rule does apply to settlements between the government and private parties.
VIII. Rule 8.5
A member suggested that it might be possible to go forward on Rule 8.5 in February even if Rule 5.5 is deferred until the House debates the MJP Commission Report. The Commission suggested that the member inquire if the MJP Commission concurs that Rule 8.5 could be treated differently from Rule 5.5.
IX. Rule 5.7
The Commission reviewed a proposal from the Standing Committee on Ethics and Professional Responsibility to amend Rule 5.7, and agreed with the proposed changes.
The Report and Recommendation from the New York State Bar Association that includes a proposed amendment to Rule 5.7 was discussed in connection with Rule 7.2.
X. Rule 7.2
The Commission first discussed the Reporter's proposed revisions to Comment , which relates to Rule 7.2(b). The Reporters advised the Commission that after communicating with the Standing Committee on Group and Prepaid Legal Services, they had proposed a change in the Comment to add the phrase "or delivery system" in the sentence that now reads, "A legal service plan is a prepaid or group legal service plan or a similar plan or delivery system that assists prospective clients to secure legal representation." The Reporters spoke on a conference call this morning with the Chair of the Standing Committee on Lawyer Referral and Information Service, who felt that the words "similar plan" were confusing. The Reporters suggest replacing "similar plan or delivery system" with the words "similar delivery system." The Commission unanimously agreed.
The Commission next discussed the Report and Recommendation from the New York State Bar Association. The Report is similar to a proposal made by New York to the Commission last year. At that time, the Commission took no action, in part because the Ethics Committee had been charged by the House of Delegates with studying strategic alliances.
In addition to the NYSBA Report, the Commission had before it for consideration proposed changes to Rule 7.2 that are based on the August Report to the House by the Ethics Committee. The Report was withdrawn prior to the meeting of the House so that Ethics 2000 and the Ethics Committee could discuss a possible agreement on Rule 7.2.
In light of the two proposals that both relate to strategic alliances, the Commission suggested that the Ethics Committee work with the NYSBA on a resolution.
XI. Rule 1.11
The Commission agreed with the proposed Rule 1.11 that was drafted in conjunction with the Administrative Law Section and a number of other sections.
Robert Creamer, ALAS
Stephen Csontos, U.S. Department of Justice
Diane Karpman, Beverly Hills Bar
Joseph Lundy, ALAS
George Overton, Chicago Bar