Ethics 2000

Chair's Introduction And Executive Summary

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 recommendations on amendments to the ABA Model Rules of Professional Conduct. I do so proudly and humbly. I am proud of the Ethics 2000 Commission and its herculean effort to produce this Report in a timely manner. I am humbled by the daunting task of reconciling the many diverse views presented to us along the way.

We began this journey 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. A few states had elected to retain some version of the 1969 Model Code of Professional Responsibility, and California remained committed to an entirely separate system of lawyer regulation.

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. In balancing the need to preserve the good with the need for improvement, we were mindful of Thomas Jefferson's words of nearly 185 years ago, in a letter concerning the Virginia Constitution, that "moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects."

Thus, we have retained 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.

I must pause to underscore the openness of our process. We have had 45 days of meetings, all of which were open, and 10 public hearings at regular intervals over this period of nearly 40 months. There have been a large number of interested observers at our meetings, many of whom were members of our Advisory Council of 250-plus persons, to offer comments and suggestions. Those observations have been very helpful and influential in shaping the Report. Our public discussion drafts, minutes and the Commission’s November 2000 Report have been available on our website ( www.abanet.org/cpr/e2k/home.html) for the world to see and comment upon. As a consequence, we have received an enormous number of excellent comments and suggestions, many of which have been adopted in the formulation of this Report.

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. But the journey we have undertaken over the past four years to produce this Report has not been without controversy or respectful division within our ranks. Indeed, this would be a very sterile document if every vote in the Commission’s deliberations had been unanimous. As Walter Lippmann, the great American writer and editor said, "Where all think alike, no one thinks very much."

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.

The Commission recognizes that this Report represents only our view - by majority vote on a rule-by-rule basis - of the provisions meriting retention and those warranting change to craft the Model Rules for the future. We expect the national dialogue will continue over the coming months. When the House of Delegates has finally concluded its work on Model Rule revisions and the state supreme courts consider implementation, it is our fervent hope that the goal of uniformity will be the guiding beacon.

In addition to the overview provided in this Report, we have provided a detailed "Reporter’s Explanation" after the proposed amendments for each Rule.

Overview of Recommendations

What follows is a brief description of the most significant recommendations proposed by the Commission.

1. Communication with Clients, Informed Consent, Allocation of Authority

One recurring theme throughout this Report is an insistence on clear communication between lawyer and client. The lawyer’s obligation to consult with the client is emphasized in Rule 1.4 ("Communication"), and given effect in rules requiring that client consent must be "informed." As defined in a new Rule 1.0 on terminology, "informed consent" means agreement by a person "after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct." The Commission also proposes to require that client consent be confirmed in writing in many cases, notably in connection with conflict waivers under Rules 1.7 (current client) and 1.9 (former client). Ordinarily the requirement of a writing may be satisfied by a letter from the lawyer to the client, though in a few cases the rules require the client’s signature. (The three rules that require a client to sign a consent are Rule 1.5(c) on contingent fees, Rule 1.8(a) on business transactions with clients, and Rule 1.8(g) on aggregate settlements.) If it is not feasible to obtain or transmit the writing at the time the person gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter.

The Commission also proposes in Rule 1.5 ("Fees") to require a lawyer to communicate the scope of the representation and fee and expense arrangements to a client in writing before or shortly after the commencement of the representation, except where the lawyer will charge a "regularly represented" client at the same rate. Rule 1.5(e) will now require a client’s agreement to a division of the fee in all cases, including those in which the division is in proportion to the services performed. The client must also agree to the share each lawyer will receive, and this agreement must be confirmed in writing.

The allocation of responsibility between lawyer and client is explicated in amendments to Rule 1.2 ("Scope of Representation and Allocation of Authority Between Client and Lawyer"). This provision retains the present authority of the client to decide objectives of the representation. A new sentence confirms that "a lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation." The Commission decided to leave the resolution of disagreements with clients about means to be worked out within a framework defined by the law of agency, the right of the client to discharge the lawyer, and the right of the lawyer to withdraw from the representation pursuant to Rule 1.16 ("Declining or Terminating Representation") if the lawyer has a "fundamental disagreement" with the client.

Special issues of communication are presented where a client’s capacity is diminished by reasons such as minority or mental disability. Amendments to Rule 1.14 (retitled "Client With Diminished Capacity") provide that where the lawyer believes that a client with diminished capacity is at risk of physical, financial or other harm unless action is taken, the lawyer may take necessary protective action. For example, the lawyer may, in some circumstances, seek appointment of a guardian, and may be impliedly authorized under Rule 1.6 ("Confidentiality of Information") to reveal information relating to the representation to protect the client’s interests.

2. Confidentiality

There has always been a tension between the goal of keeping inviolate the client’s confidences and the need to give the lawyer the ability to deal with situations where disclosure is necessary to protect third parties or the legal system from substantial harm. The Commission is proposing to broaden, in carefully circumscribed situations, the grounds for discretionary disclosure of client information under Rule 1.6, recognizing that a number of state jurisdictions have already adopted this position. As amended, Rule 1.6 would permit (though not require) disclosure to prevent death or substantial bodily harm and to prevent or rectify substantial injury resulting from a client's abuse of the lawyer's services. It also will explicitly permit a lawyer to disclose confidences to obtain legal advice about the lawyer's compliance with the Rules of Professional Conduct. Finally, it will permit disclosure where it is required by law or court order. In light of these substantial changes to Rule 1.6, the Commission has both reorganized and significantly revised the Rule’s Comment.

3. Conflicts of Interest

a) Current Clients - The Commission retained the basic substantive concepts relating to conflicts affecting current clients, but completely reorganized Rule 1.7 (retitled "Conflict of Interest: Current Client") and expanded its Comment to give guidance in a number of complex areas. The revised rule clearly defines what constitutes a conflict of interest, and distinguishes situations where the lawyer may be "directly adverse" to a client from those in which the lawyer’s representation of the client may be "materially limited." As previously noted, client consent to a conflict must be "informed," and must be confirmed in writing. The revised rule clarifies that certain conflicts are "nonconsentable:" e.g., lawyers from the same firm may not represent opposing parties in litigation even if both clients consent.

The Comment to Rule 1.7 also gives detailed guidance on such unsettled conflicts issues as positional conflicts, conflicts in representation of multiple clients, class action conflicts, corporate family conflicts, close family relationships, and prospective waivers. A lawyer’s obligation to withdraw where a conflict arises after a representation has begun is detailed in several contexts, such as changes in corporate and other organizational affiliation, or the addition or realignment of parties in litigation. Where more than one client is involved, a lawyer may be required to terminate both representations and client consent may not be sufficient to permit the lawyer to continue any participation in the matter.

b) Other Conflicts Issues – Former Clients, Government Lawyers, Transactions with Clients, Prospective Clients

No substantive change is being recommended in the text of Rule 1.9 on "Duties to Former Clients", though new commentary clarifies several unsettled issues. For example, a lawyer who has represented multiple clients in a matter may not subsequently represent one client against the others in the same or a substantially related matter, without the consent of all affected clients. The Comment also defines when matters will be deemed "substantially related" for purposes of the rule: "if they involve the same subject matter or if there is otherwise a risk that confidential information as would normally have been obtained in the prior representation would materially advance the client’s position in the current matter."

The conflicts of interest obligations of current and former government lawyers are comprehensively covered in an expanded Rule 1.11, which combines for the first time in a single rule a lawyer’s duties when opposing a former client, and the special obligations of a government employee not to abuse the power of public office. Rule 1.11 makes clear that the substantive provisions of Rule 1.9 apply to cases where the current or former government lawyer is adverse to a former client in the same or a substantially related matter, and also makes clear that lawyers employed by the government are subject to Rule 1.7.

Rule 1.8, which covers specific rules on conflicts of interest with current clients, reformulates and clarifies the rules governing a lawyer’s business transactions with clients. As amended, paragraph (a) of Rule 1.8 would require the lawyer to advise the client in writing of the desirability of seeking independent legal counsel on the transaction, and to obtain the client’s informed written consent to the essential terms of the transaction and the lawyer’s role in it, including whether the lawyer is representing the client’s interests in the transaction. New commentary explains the risks associated with a lawyer’s dual role as legal adviser and participant in a transaction, clarifying out that in some cases the conflict may be such that Rule 1.7 would preclude the lawyer from even seeking the client’s consent to the transaction.

The Commission has also added a new Rule 1.8(j) that would prohibit sexual relations between a lawyer and client, unless a consensual sexual relationship existed at the time the client-lawyer relationship commenced.

A new Rule 1.18 dealing with a lawyer’s duties to a prospective client imposes on the lawyer a duty of confidentiality to a person who discusses the possibility of forming a client-lawyer relationship. In addition, a lawyer will not be permitted, without consent, to represent any clients against such a prospective client in the matter about which the lawyer was consulted (or one substantially related to it), if the lawyer received information during the consultation that could be "significantly harmful" to the prospective client in the matter. Other lawyers in the firm will be permitted to undertake such a representation, however, as long as the personally disqualified lawyer is screened.

4. Imputation of Conflicts—Screening

Conflicts that burden one lawyer are generally imputed by Rule 1.10 to all lawyers associated in a "firm." (The term "firm" as defined in Rule 1.0 may include lawyers sharing office space, depending on the circumstances.) Under the amended Rule 1.10, however, a lawyer’s "personal interest conflicts" would ordinarily not be imputed. The amended rule also permits nonconsensual screening in the case of lawyers moving between firms. The personally disqualified lawyer may receive no part of the fee from the representation, and affected clients must be notified. The Commission was ultimately persuaded that non-consensual screening in these cases adequately balances the interests of the former client in confidentiality of information, the interests of current clients in hiring the counsel of their choice (including a law firm that may have represented the client in similar matters for years), and the interests of lawyers in mobility, particularly when circumstances dictate the need to move. The Commission understands that there have been few significant complaints regarding screening in the seven jurisdictions whose rules currently permit it. The elements of an effective screen are set forth in a new provision of Rule 1.0 on Terminology.

Other situations in which the rules will permit unconsented screening are those involving former government lawyers, judges and third party neutrals, lawyers who interview prospective clients, and lawyers who perform "short-term limited legal services" pursuant to new Rule 6.5 ("Non-profit and Court-Annexed Limited Legal-Service Programs"). The conflicts of current government lawyers and a firm’s nonlawyer personnel are ordinarily not imputed, though in both cases personally disqualified individuals "ordinarily" should be screened.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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
August 2001

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

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