February 2002 Report
Introduction
On behalf of the Commission on Evaluation of the Rules of Professional Conduct ("Ethics 2000"), I respectfully submit to the House of Delegates our Report and Recommendation on amendments to the ABA Model Rules of Professional Conduct. I do so proudly and humbly. The Commission appreciates the time and attention given to its Report by the House of Delegates in August 2001 and the excellent progress made in debating the proposed changes to the Model Rules.
As requested by the Committee on Rules and Calendar of the House, the Commission has submitted this Report and Recommendation in two Sections. The first section presents the proposed amendments to Rules 1.11 through 8.5, the rules that were not debated in August 2001. Each of the rules in the first section is followed by a detailed Reporter's Explanation Memorandum that explains the reasons for the Commission's recommendations. In addition, we have provided in this introduction, a brief description of the most significant recommendations proposed by the Commission in the rules not yet debated.
The second section outlines the conforming amendments to the rules debated by the House in August. An introduction to this section provides a brief description of the reasons for the conforming amendments.
Since August, the Commission has spoken with all of the persons and entities who filed amendments at the Annual Meeting to rules that were not debated at that time. We are pleased to report that in a number of instances, the Commission has accepted the changes suggested and has incorporated them into this newly filed report.
Overview of Recommendations
What follows is a brief description of the most significant recommendations proposed by the Commission in Rules 1.11 through 8.5.
1. Law Firm Management
The Commission is proposing that Rules 5.1 ("Responsibilities of a Partner or Supervisory Lawyer") and Rule 5.3 ("Responsibilities Regarding Nonlawyer Assistants") be amended to make clear that the responsibilities imposed by these provisions apply not just to "partners" in a law firm, but to all lawyers with "managerial authority" in a firm (defined in Rule 1.0 to include corporate legal departments, legal services organizations, and law offices within government agencies). The Comment to Rule 5.1 will elaborate the duty of each responsible lawyer to make reasonable efforts to establish internal policies and procedures designed to provide reasonable assurance that all lawyers in a firm will conform to the Rules, including procedures designed to detect and resolve conflicts of interest, to account for client funds, and to ensure proper supervision of inexperienced lawyers, as well as nonlawyer personnel.
2. Professional Independence
The Commission recommends no significant change in Model Rule 5.4, which addresses the professional independence of a lawyer and prohibitions on forming partnerships and sharing fees with nonlawyers. This position is consistent with Resolution 10F adopted by the ABA House of Delegates in July 2000 that authorizes the Standing Committee on Ethics and Professional Responsibility to consider whether rules should be amended or developed to address strategic alliances and side-by-side partnerships between lawyers and nonlawyers.
3. Multijurisdictional Practice
The complex issues raised by multijurisdictional practice are exemplified by the problem of whether and under what circumstances a lawyer is engaged in the unauthorized practice of law when performing legal work for a client in a state where the lawyer is not licensed. The ABA Commission on Multijurisdictional Practice has been established to study this matter. In the interim, however, the Ethics 2000 Commission has recommended significant changes in Model Rules 5.5 ("Unauthorized Practice of Law") and 8.5 ("Disciplinary Authority; Choice of Law") that recognize the fact that modern legal practice crosses jurisdictional boundaries in a variety of ways.
Proposed amendments to Rule 5.5 identify four "safe harbors" for a lawyer practicing outside the licensing jurisdiction: 1) where the lawyer is preparing for a proceeding in which the lawyer expects to be admitted pro hac vice; 2) where the lawyer is acting on behalf of a client of which the lawyer is an employee; 3) where the lawyer is handling a matter that is "reasonably related" to the lawyer’s representation of a client in a jurisdiction in which the lawyer is licensed; and 4) where the lawyer is "associated in the matter" with a lawyer admitted in the jurisdiction.
Under proposed amendments to Rule 8.5, a lawyer who "renders or offers to render any legal services" in a jurisdiction where the lawyer is not admitted to practice will be subject to the disciplinary authority and rules (including choice of law rules) of that jurisdiction, as well as the jurisdiction where the lawyer is licensed. In addition, the Commission is proposing a new approach to choice of law for conduct that does not take place in connection with a matter before a tribunal, proposing that a determination should be made as where the conduct had its predominant effect. A lawyer will not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur.
4. Pro Bono Service
The Commission discussed at length the question whether to amend Rule 6.1 ("Voluntary Pro Bono Publico Service") to make mandatory a lawyer’s obligation to perform a specified number of hours of pro bono service. After seeking public comment on the issue, the Commission voted to recommend that pro bono service remain voluntary. In order to emphasize that pro bono publico service is a time-honored ethical obligation of all members of the legal profession, the Commission voted to add to the black letter rule a provision now in the Comment stating that "Every lawyer has a professional responsibility to provide legal services to those unable to pay." New commentary will emphasize law firms’ responsibility to enable firm lawyers to meet their pro bono obligations.
5. Limited Legal Service Programs
A new Rule 6.5 ("Non-Profit and Court-Annexed Limited Legal Service Programs") will address the ethical obligations of lawyers providing "short-term limited legal services" to persons of limited means under the auspices of a non-profit or court-annexed legal services program (such as "legal advice hotlines, advice-only clinics, or pro se counseling programs"). In these programs a client-lawyer relationship is established, but the conflict of interest rules are relaxed so as not to discourage firms from permitting their lawyers to volunteer in legal service programs.
6. Third Party Neutrals
The Commission is proposing a new rule on lawyers serving as third-party neutrals in alternative dispute resolution settings. This new Rule 2.4 ("Lawyer Serving as Third-Party Neutral") will require lawyers serving as neutrals to make clear to the parties the nature of their role in the matter. Rule 2.2 ("Intermediary") will be deleted in its entirety. The Commission is also proposing amendments to Rule 1.12 (now "Former Judge or Arbitrator," retitled "Former Judge, Arbitrator, Mediator or Other Third Party Neutral") to extend its conflict of interest provisions to all third party neutrals. This means that former mediators, like former judges and arbitrators, may not represent a client in any matter in which they participated personally and substantially while a mediator, but others in their firm may do so if the former neutral is screened.
7. Obligations to the Tribunal
The Commission has revised and reorganized Rule 3.3 ("Candor Toward the Tribunal") to clarify a lawyer's obligations with respect to testimony given and actions taken by the client and other witnesses. (The term "tribunal" is defined in new Rule 1.0 to include binding arbitration and all entities acting in an adjudicative capacity.) The Comment was reorganized and expanded to address some recurring situations not directly addressed in the Rule. In some particulars, the lawyer's obligations to the tribunal have been strengthened. For example, the Rule now makes clear that the lawyer must not allow the introduction of false evidence and must take remedial steps where the lawyer comes to know that material evidence offered by the client or a witness called by the lawyer is false - regardless of the client's wishes. As under the existing Rule, the lawyer's obligations to the tribunal may require the lawyer to reveal information otherwise protected by Rule 1.6. The lawyer's obligation in the existing Rule to avoid assisting client crime or fraud is replaced by a broader obligation to ensure the integrity of the adjudicative process. The lawyer must take remedial measures whenever the lawyer comes to know that any person is engaging or has engaged in criminal or fraudulent conduct related to the proceeding, such as jury tampering or document destruction.
In one special case, however, the lawyer's obligation to the client has been reaffirmed and strengthened, and that is where the lawyer represents the defendant in a criminal proceeding. For the first time the Rule text will address the special obligations of a criminal defense lawyer, providing that such a lawyer does not have the same discretion as other lawyers regarding the client's own testimony. While a criminal defense lawyer is subject to the general rule prohibiting the offering of testimony the lawyer "knows" to be false, the lawyer may not refuse to allow a defendant to testify in the defendant's defense if the lawyer only "reasonably believes" the testimony will be false. The Comment also provides that where a court insists that a criminal defendant be permitted to testify in the defendant's defense, the lawyer commits no ethical violation in allowing the client to do so even if the lawyer knows the client intends to lie.
8. Obligations to Third Parties
The Commission proposes no change in the text of Rule 4.1 ("Truthfulness in Statements to Others"), but will clarify in Comment the duty imposed by paragraph (b) (a lawyer may not knowingly "fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure would be prohibited by Rule 1.6"). This duty is a specific application of the lawyer’s general duty not to assist a client in fraudulent or criminal conduct set forth in Rule 1.2(d), and is most frequently invoked where a client’s wrongdoing involves dishonesty or misrepresentation to a third party. New commentary explains the relationship between the lawyer’s duty to third parties under Rules 1.2(d) and 4.1(b), and the lawyer’s duty of confidentiality to the client under Rule 1.6.
A new provision of Rule 4.4 ("Respect for Rights of Third Persons") deals with the currently controversial issue of the "errant fax." It provides that a lawyer who receives a document, and knows or reasonably should know that it was inadvertently sent, must promptly notify the sender. Beyond this, however, the rule does not attempt to dictate a lawyer’s possible obligations under other law in connection with examining and using confidential documents that come into the lawyer’s possession through the inadvertent or wrongful act of another.
9. Communication with Represented and Unrepresented Persons
The Commission spent a great deal of time and energy considering possible amendments to Rule 4.2 ("Communication with Person Represented by Counsel"), to meet concerns raised by the U.S. Department of Justice. In the end, the Commission decided to propose only one amendment to the black letter of the rule, confirming that otherwise prohibited communications may be authorized by court order. New commentary provides that a court order may be sought either to clarify the application and scope of the rule or, in exceptional circumstances, to authorize communication that would otherwise be prohibited by the rule.
Existing commentary is revised to explain that communications "authorized by law" may include, for example, those made (a) by a lawyer "on behalf of a client who is exercising a constitutional or other legal right to communicate with a government official," and (b) in the course of "investigative activities of lawyers representing governmental entities, directly or indirectly through investigative agents, prior to the commencement of criminal or civil enforcement proceedings." In this latter regard, the revised Comment attempts to clarify the relationship between Rule 4.2 and constitutional limits on government lawyers’ investigative activities: "The fact that a communication does not violate a state or federal constitutional right is insufficient to establish that the communication is permissible under this rule."
New commentary makes clear that the no-contact rule does not preclude a lawyer from advising a represented person who is seeking a second opinion, as long as the lawyer is not otherwise representing a client in the matter. It also confirms that a lawyer may not make a communication prohibited by the rule through the acts of another – though parties to a matter may communicate directly with each other. Finally, it provides that the "no-contact rule" applies even when the represented person "initiates or consents to" the communication, and that a lawyer must immediately terminate communications if the lawyer learns that the person is one with whom communication is not permitted.
With respect to the applicability of the no-contact rule in the organizational context, the test has been modified so that communication is now prohibited with "a constituent" of the organization who "supervises, directs, or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter, or whose act or omission in the matter may be imputed to the organization for purposes of civil or criminal liability." The Commission deleted the problematic reference in the current rule to persons whose "statement may constitute an admission on the part of the organization." The Comment also clarifies that the rule does not bar communications with former constituents.
The Commission proposes to restore to Rule 4.3 ("Dealing with Unrepresented Person") a provision from the Model Code of Professional Responsibility prohibiting a lawyer from giving legal advice to an unrepresented person whose interests "are or have a reasonable possibility of being in conflict" with those of the lawyer’s client, other than the advice to seek counsel. New commentary provides guidance on what constitutes impermissible advice-giving, and alludes to the particular problems that may arise when a lawyer for an organization deals with an unrepresented constituent.
Conclusion
In closing, the Commission expresses its gratitude to the law firm of Drinker Biddle & Reath, whose generous contribution helped make possible the continued, invaluable support of the Commission's Chief Reporter. I also want to express personally my gratitude to and admiration for my colleagues. The chemistry, good will, good humor, serious purpose, collegiality and hard work of the Commission members, Reporters and ABA staff has been extraordinary. The profession and the public have been enriched beyond measure by their efforts. It has been - and continues to be - a pleasure and a privilege for me to work with all of them.
For the Commission:
E. Norman Veasey, Chair
February 2002
Commission Members
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
Board of Governors Liaisons
James Lee
Seth Rosner
Reporters
Nancy J. Moore, Chief Reporter
Carl A. Pierce
Thomas D. Morgan (1998 – 1999)
ABA Center for Professional Responsibility
Jeanne P. Gray, Director
Charlotte K. Stretch, Counsel
Susan M. Campbell, Paralegal