Highlights Of Changes From The November Report

RULE 1.0: TERMINOLOGY

1. Added new sentence to the definition of "Confirmed in Writing" and a new Comment [1] to clarify in the text of the Rules, rather than merely in Comment [20] to Rule 1.7, that if it is not feasible to obtain or transmit a writing at the time that informed consent is given, then the lawyer must obtain or transmit it within a reasonable time thereafter.

2. Added references in the definitions of "Firm" and "Partner" to "other association authorized to practice law" to encompass lawyers practicing in limited liability entities.

3. Revised Comment [9] to emphasize that the effectiveness of screening depends on the willingness of the screened lawyer not to discuss the matter, as well as the knowledge of lawyers working on the matter that they are not supposed to discuss the matter with or around the screened lawyer.

RULE 1.3: DILIGENCE

1. Added a new Comment [5] to alert sole practitioners to the need to have a plan in place to prevent client matters from being neglected in the event of the sole practitioner's death or disability.

RULE 1.5: FEES

1. Returned to original language on contingent fees in paragraph (a)(8).

2. Added a de minimis exception to writing requirement.

3. Returned to the current text of paragraph (e) regarding division of fees, with the sole exception that the client must agree, and the agreement must be confirmed in writing, to the participation of each lawyer, including the share of the fee that each lawyer will receive.

4. Revised the explanation of "joint responsibility" in Comment [7] to entail legal responsibility, including financial and ethical responsibility, as if the lawyers were associated in a partnership.

RULE 1.7: CONFLICT OF INTEREST: CURRENT CLIENTS

1. Reorganized paragraph (b) to clarify that the lawyer should obtain the client(s)'s informed consent only after determining that the conflict is consentable under subparagraphs (1) through (3).

2. Clarified a number of comments based on suggestions received.

RULE 1.8: CONFLICT OF INTEREST: CURRENT CLIENTS: SPECIFIC RULES

[19] Added a new comment to explain how paragraph (j), which prohibits sex with clients, is applied in the case of an organizational client.

RULE 1.9: DUTIES TO FORMER CLIENTS

1. Modified Comments [2] and [3] to further refine the concept of substantial relationship, particularly as it affects the potential disqualification of former lawyers for an organization, including the government.

RULE 1.10: IMPUTATION OF CONFLICTS OF INTEREST: GENERAL RULE

1. Deleted the "pending litigation" exception paragraph (c) on the ground that it will require extensive litigation on whether a lawyer's involvement constituted a "substantial relationship".

RULE 1.11: SPECIAL CONFLICTS OF INTEREST FOR FORMER AND CURRENT GOVERNMENT OFFICERS AND EMPLOYEES

1. Amended Comments [4] and [5] to clarify that a lawyer who moves from one government agency to another (within the same government) does not necessarily represent two separate clients and that law external to these Rules governs the question whether two government agencies should be regarded as the same or different clients for conflict of interest purposes.

RULE 1.15: SAFEKEEPING PROPERTY

1. Added a new paragraph (c) to require lawyers to deposit advanced fees and expenses in a client trust account, to be withdrawn by the lawyer only as fees are earned or expenses incurred.

RULE 3.1: MERITORIOUS CLAIMS AND CONTENTIONS

1. Returned to the current Model Rule language of "good faith".

2. Deleted the reference to "client desires" in Comment [2] on the ground that lawyer discipline ought not be based on subjective client motivations.

RULE 4.2: COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL

1. Deleted all parts of Comment [3] that suggested a substantive view of what "authorized by law" might mean in the context of communications with government officials, on grounds that 1) the law is too unclear to express a view; and 2) the view expressed in the November report is inconsistent with ABA Opinion 97-408 and most authorities.

RULE 5.1: RESPONSIBILITIES OF PARTNERS, MANAGERS, AND SUPERVISORY LAWYERS

2. Withdrew the recommendation that the duties imposed by Rule 5.1(a) on partners and managing attorneys in a law firm be extended to the law firm as an entity.

RULE 5.3: RESPONSIBILITIES REGARDING NONLAWYER ASSISTANTS

1. Withdrew its recommendation that the duties imposed by Rule 5.1(a) on partners and managing attorneys in a law firm be extended to the law firm as an entity

RULE 5.5: UNAUTHORIZED PRACTICE OF LAW

1. Deleted the reference to "other employees" in paragraph (b)(2)(i).

2. Added language to more clearly indicate that merely passive "association" with a locally admitted lawyer would not be sufficient for this safe harbor.

3. Added a new reference to federal law that supercedes the applicability of state law on unauthorized practice.

RULE 7.2: ADVERTISING

1. Replaced the reference to "legal service organization" in paragraph (b): with "legal service plan," and added definitions in Comment [6].

2. Modified Paragraph (b) to permit lawyers to pay the usual charges of for-profit lawyer referral service that has been approved by an appropriate state authority.

RULE 8.3: REPORTING PROFESSIONAL MISCONDUCT

1. Broadened the exception in paragraph (c) to include information gained by any lawyer or judge participating in an approved lawyer assistance program and deleted language qualifying the kind of information subject to the exception.

RULE 8.4: MISCONDUCT

1. Clarified in Comment [1] that a lawyer may not appoint the client as an agent of the lawyer in an attempt to accomplish indirectly what the lawyer is not permitted to do directly.

Return to Ethics 2000 Home Page | Return to Center's Home Page