The Commission's work will proceed along three separate tracks simultaneously. With respect to each track, as the Commission's review of individual rules is completed, the draft rules will be widely circulated for comment. Throughout the process, the Commission will continue to receive comments and refine drafts as appropriate. The Commission expects to submit its final draft of proposed changes to the House of Delegates in July 2000.
"Track 1" consists of rules presently being addressed by the Commission: 1.1, 1.6, 1.7, 1.8, 1.9 - 1.12, 2.2, 4.2, and 8.4, as well as the proposed definition of "informed consent."
"Track 2" consists of other rules identified as most in need of fixing. The Reporters have come up with the following list, in order of priority:
1. new rule on duties to prospective clients;
2. Rule 1.2: The rule presently gives insufficient guidance to lawyers regarding the proper allocation of decision-making authority between lawyer and client and may be contrary to case law to the extent it suggests a lawyer has the legal authority to override the client's instructions as to all means-based decisions;
3. Rule 3.3: The Commission should consider deleting paragraph (a)(2) and inserting language making it clear that a lawyer must take reasonable measures to correct material misstatements in depositions or elsewhere in the court record. The treatment of client perjury should be reexamined in light of case developments. The definition of what constitutes assisting a fraud should be clarified;
4. Rule 1.14: The rule gives insufficient guidance to lawyers representing clients suffering under a disability, including children;
5. Rule 1.15: The rule should give additional guidance on the handling of advanced fees and the handling of property following the termination of a representation;
6. Rule 3.4: The Commission should consider addressing the problem of a lawyer wrongfully obtaining privileged information, including a comment on the problem of the misdirected fax. It should also consider inserting a discussion in Comment  of handling the fruits and instrumentalities of a crime;
7. new rule covering systems for law practice (accounting, conflict checks, docket-management);
8. new rule on discipline of law firms;
9. Rule 1.5: The Commission should consider requiring written fee agreements and should reexamine the fee division requirement. It should also reexamine the reasonableness factors in light of new methods of billing, and the comment should address the reasonableness of non-refundable retainer agreements. Somewhere, either in this rule or elsewhere, the Commission should consider addressing proper billing (e.g., billing for overtime, word-processing or copying);
10. Rule 1.13: Paragraph (c) should be changed to permit disclosure as permitted by new Rule 1.6. The Commission should consider requiring the lawyer to report serious misdeeds to the corporate board in paragraph (b) and should consider whether this rule gives appropriate advice to government lawyers;
11. Rule 3.5(b): At least one U.S. District Court has held paragraph (b) to be unconstitutional as applied to post-trial communications with jurors;
12. new rule on lawyers representing fiduciaries.
13. Preamble/Scope: The Commission should review the extent to which the rules are applied outside the context of lawyer discipline and consider whether to revise the statements in the Preamble/Scope that address this issue.
14. Rule 3.8(f): The Commission should review the suitability of this provision as a rule of ethics especially applicable to prosecutors in light of its invalidation by several courts and its rejection by most bars that have considered it.
15. "Pay to play": The Commission will examine the issues raised by the reports of the Standing Committee on Ethics and Professional Responsibility and the Ad Hoc Committee on Judicial Campaign Finance Reform.
A number of other rules were identified that are probably best considered along with the
"Track 3" issues, as set forth below.
"Track 3" consists of subject areas that are increasingly important in the future of law practice and implicate multiple rules. The Commission has identified seven topics and combined them into three groups:
1) ADR and Mass Torts:
possible new rule on lawyer serving as dispute resolution neutral
lawyer representing client in ADR
conflicts---concurrent and successive mediation/representation
2) Technology and Access to Legal Services:
client-law firm networking
electronic access to client files
review Rules 7.1 - 7.3
Access to Legal Services
nonlawyer activity and regulation
pro se help services
lawyer relationships with intermediary organizations
review Rules 1.2(c), 5.3, 5.5
3) Interstate and International Practice, Multidisciplinary Partnerships and Employed Lawyers :
Inter-state and International Practice
national law practice v. state regulation
choice of law
alliances between law firms (international and domestic)
review Rules 5.5, 8.5
fee sharing with nonlawyers
partnerships with nonlawyers
review Rules 5.4, 5.7
adequacy of existing rules
review Rules 5.5, 5.1 - 5.2
As part of "Track 3" the Commission will identify experts to work with the Commission and will consider special concerns of solo and small firm practitioners.
Proposed Detailed WORK PLAN
|Meeting Date||Track 1||Track 2||Track 3|
|Dec. 1998||4.2, 1.6, 1.7, 1.8, 1.9(c), 1.10, 1.11,
|Feb. 1999||1.9-1.12, 1.1||prospective
clients, 3.3, 3.4
|May 1999||8.4||1.2, 1.5, 1.14,
law firm discipline,
"pay to play"
|access to legal
|Aug. 1999||1.15, law
|Oct. 1999||1.13, 3.5(b)
small firm lawyers/
|Dec. 1999 -
|Prepare final Report for submission to the House of Delegates.|