Executive Summary

The Commission on Evaluation of the Rules of Professional Conduct was created in mid-1997 by virtue of the vision and action of then-incumbent ABA President Jerome J. Shestack, his immediate predecessor, N. Lee Cooper, and his successor, Philip S. Anderson. These three leaders persuaded the ABA Board of Governors that the Model Rules adopted by the ABA House of Delegates in 1983 needed comprehensive review and some revision, and this project was launched. Though some might have thought it premature to reopen the Model Rules to such a rigorous general reassessment after only 14 years, the evaluation process has proved that the ABA leadership in 1997 was right on target.

One of the primary reasons behind the decision to revisit the Model Rules was the growing disparity in state ethics codes. While a large majority of states and the District of Columbia had adopted some version of the Model Rules (then 39, now 42), there were many significant differences among the state versions that resulted in an undesirable lack of uniformity - a problem that had been exacerbated by the approximately 30 amendments to the Model Rules between 1983 and 1997.

But it was not only the patchwork pattern of state regulation that motivated the ABA leaders of 1997 to take this action. There were also new issues and questions raised by the influence that technological developments were having on the delivery of legal services. The explosive dynamics of modern law practice and the anticipated developments in the future of the legal profession lent a sense of urgency as well as a substantive dimension to the project. These developments were underscored by the work then underway on the American Law Institute’s Restatement of the Law Governing Lawyers.

There was also a strong countervailing sense that there was much to be valued in the concepts and articulation of the Model Rules. The Commission concluded early on that these valuable aspects of the Rules should not be lost or put at risk in our revision effort. As a result, the Commission set about to be comprehensive, but at the same time conservative, and to recommend change only where necessary.

Thus, the Commission decided to retain the basic architecture of the Model Rules. We have also retained the primary disciplinary function of the Rules, resisting the temptation to preach aspirationally about "best practices" or professionalism concepts. Valuable as the profession might find such guidance, it would not have - and should not be misperceived as having - a regulatory dimension. We were, however, always conscious of the educational role of the Model Rules. Finally, we tried to keep our changes to a minimum: when a particular provision was found not to be "broken" we did not try to "fix" it. Even so, as the reader will note, the Commission ended up making a large number of changes: some are relatively innocuous and nonsubstantive, in the nature of editorial or stylistic changes; others are substantive but not particularly controversial; and a few are both substantive and controversial.

How is it that these changes were deemed necessary? In the end, of course, it was by majority vote of the 13 members of the Commission. But those votes did not take place in a vacuum, and our determinations are not being pronounced ex cathedra. Rather, they are products of thorough research, scholarly analysis and thoughtful consideration. Of equal importance, they have been influenced by the views of practitioners, scholars, other members of the legal profession and the public. All these constituencies have had continual access to and considerable - and proper - influence upon the deliberations of the Commission during its extraordinarily open process from the beginning of its work over three years ago to the present.

Moreover, we have encouraged state and local bar associations, ABA sections and divisions, other professional organizations and the judiciary to appoint specially designated committees to work with and counsel the Commission. This effort has been successful, and the Commission has benefitted significantly from the considered views of these groups. We fully expect more interaction of this nature as we progress toward consideration of this Report by the ABA House of Delegates.

In heeding the counsel of these advisors, we have been constantly mindful of substantial and high-velocity changes in the legal profession, particularly over the past decade. These changes have been highlighted by increased public scrutiny of lawyers and an awareness of their influential role in the formation and implementation of public policy; persistent concerns about lawyer honesty, candor and civility; external competitive and technological pressures on the legal profession; internal pressures on law-firm organization and management raised by sheer size, as well as specialization and lawyer mobility; jurisdictional and governance issues such as multidisciplinary and multijurisdictional practice; special concerns of lawyers in nontraditional practice settings, such as government lawyers and in-house counsel; and the need to enhance public trust and confidence in the legal profession.

At the end of the day, our goal has been to develop a set of Rules that are comprehensible to the public and provide clear guidance to the practitioner. Our desire was to preserve all that is valuable and enduring about the existing Model Rules, while at the same time adapting them to the realities of modern law practice and the limits of professional discipline. We believe our product is a balanced blend of traditional precepts and forward-looking provisions that are responsive to modern developments. Our process has been thorough, painstaking, open, scholarly, objective and collegial.

Since publication of the Commission’s Report in November 2000, the members of the Commission have met in person or via conference call with over 50 entities interested in the Commission’s Report. Many of these groups have provided suggestions for improvement to the November Report. The Commission has embraced a number of these changes, which are reflected in the Report we now submit to the House of Delegates.

What follows is a brief summary of the amendments proposed by the Commission. A broader narrative overview is provided in the Commission’s Report. In addition, the Commission has provided a detailed "Reporter’s Explanation" after the proposed amendments for each Rule.

CHANGES THE COMMISSION PROPOSED

1. Clarified and strengthened a lawyer’s duty to communicate with the client

a. Replaced "consents after consultation" with "informed consent" throughout the Rules

b. Added a writing requirement in key Rules (e.g., 1.5, 1.7, 1.8)

c. Rule 1.2: clarified allocation of authority between client and lawyer

d. Rule 1.4: combined all aspects of a lawyer’s duty to communicate with a client in Rule 1.4

e. Rule 1.5: added a requirement that a lawyer communicate fees, scope and expenses in writing

2. Clarified and strengthened a lawyer’s duty to clients in certain specific problem areas

a. Rule 1.8(j): added prohibition on most client-lawyer sexual relationships

b. Rule 1.14: added guidance regarding protective measures that may be taken short of requesting a guardian

c. Rule 1.15: added a requirement that lawyers put advanced payment for fees and expenses in a client’s trust account

d. Rule 1.17: deleted provision that allowed purchaser of a law practice to refuse to undertake a representation unless the client consented to pay the purchaser’s normal fees

3. Responded to the changing organization and structure of modern law practice

a. Rule 1.10: eliminated imputation of personal interest conflicts; added a provision for screening of lateral hires under certain circumstances

b. Rule 1.12: extended application of the Rule to mediators and other third-party neutrals

c. Rule 1.17: permitted sale of a law practice to more than one person as long as the entire practice is sold

d. Rule 5.5: added a new paragraph that describes four "safe harbors" for lawyers rendering legal services in jurisdictions where they are not admitted to practice

e. Rules 5.1 and 5.3: added lawyers who possess managerial authority to those responsible under these Rules

f. Rule 2.4: created a new Rule on the lawyer’s role as third-party neutral

g. Rule 8.5: expanded disciplinary enforcement jurisdiction over lawyers not admitted in the jurisdiction if the lawyer renders or offers to render any legal services in the jurisdiction; created new choice of law provision

4. Responded to new issues and questions raised by the influence that technological developments are having on the delivery of legal services

a. Rule 7.2: deleted specification of types of public media in paragraph (a) and added a reference to electronic communication

b. Rule 7.2: permitted payments to for-profit lawyer referral services under certain circumstances

c. Rule 7.3: extended prohibition to "real-time electronic contact"; exempted contact with lawyers and with person with whom the lawyer has a close personal relationship

5. Clarified existing rules to provide better guidance and explanation to lawyers

a. Rule 1.0: added a new Rule on Terminology

b. Revised and expanded the Commentary throughout to clarify the operation of the Rules

c. Pointed out in Scope [20] that a violation of the Rules may be evidence of breach of the applicable standard of conduct

d. Rule 1.7: reorganized the text and Commentary to clarify its meaning; added new Comments to respond to common questions regarding conflicts of interest; deleted Rule 2.2 incorporating it into Rule 1.7

e. Rule 1.8: clarified several subparagraphs

f. Rules 1.9 and 1.11: clarified the relationship between these Rules

g. Rule 1.16: clarified the circumstances under which the lawyer may withdraw

h. Rule 2.3: restructured the Rule to clarify its application in situations where the evaluation poses no significant risk to the client and in situations where there is a significant risk of material and adverse effect on the client’s interest

i. Rule 3.6: conformed the scienter requirement to be consistent with Rule 1.0

j. Rule 7.1: deleted paragraphs (b) and (c) as overly broad, limiting Rule 7.1 to a prohibition against false and misleading communications; moved a portion of paragraph (b) to Rule 8.4 because the prohibition against stating or implying that the lawyer can achieve results by means the violate the Rules is applicable beyond advertising

k. Rule 8.3: conformed the scienter requirement to be consistent with Terminology

l. Rule 8.4: added material in paragraph (e) that was deleted from Rule 7.1

m. Rule 8.5: expanded disciplinary enforcement jurisdiction over lawyers not admitted in the jurisdiction if the lawyer renders or offers to render any legal services in the jurisdiction; created new choice of law provision

6. Clarified and strengthened a lawyer's obligations to the tribunal and to the justice system

a. Rule 3.3: revised and reorganized this Rule to clarify and strengthen a lawyer’s obligation of candor to the tribunal with respect to testimony given and actions taken by the client and other witnesses; clarified the lawyer’s duties under the Rule

b. Rule 3.5: created a new paragraph covering post-discharge communication with jurors

c. Rule 4.2: added reference to "court order"

7. Responded to the need for changes in the delivery of legal services to low and middle income persons

a. Rule 5.4: added a provision regarding sharing of court-awarded fees with a nonprofit organization

b. Rule 6.1: added new first sentence regarding the professional responsibility of every lawyer to provide legal services to those unable to pay

c. Rule 6.5: created a new Rule relaxing the conflict of interest and imputation rules in situations where a lawyer, under the auspices of a program sponsored by a nonprofit organization or court, provides short-term limited legal services to a client without expectation that the lawyer will provide continuing representation in the matter

8. Reviewed Rules with significant state variations

a. Rule 1.6: broadened the grounds for discretionary disclosure of client information, recognizing that many states have already moved in that direction; most notably permitting disclosure to prevent, mitigate or rectify substantial financial injury resulting from a client’s abuse of the lawyer’s services

9. Increased protection of third parties

a. Rule 1.15: clarified the lawyer’s duties when in possession of property in which two or more persons claim an interest

b. Rule 4.3: added prohibition on giving legal advice to an unrepresented person if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client

c. Rule 4.4: added a new paragraph regarding obligations of a lawyer upon receipt of an inadvertently sent document

d. Rule 1.18: created a new Rule outlining duties to prospective clients

e. Rule 2.4: created a new Rule on the lawyer’s role as third-party neutral

f. Rule 1.12: extended application of the Rule to mediators and other third-party neutrals

g. Rule 7.4: restructured Rule to separate the two subjects addressed; eliminated the provision that permits lawyers to claim certification as a specialist even though the certifying organization is not approved by an appropriate state authority or accredited by the ABA