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March 08, 2021

Testimony of Carol M. Langford - Center for Professional Responsibility

Testimony of Carol M. Langford


I offer testimony on the following five issues of importance to your Commission in evaluating changes to the current Rules:


First, the current billing rules should be revised in light of ABA Ethics Opinion 93-379 to more specifically address the adequacy and propriety of fee agreements. The rules on lawyers' fees now require a subjective analysis of as many as a dozen factors to determine whether a fee is "reasonable." These should be simplified and made more explicit. Billing two clients hourly for the same time, or billing more than the time actually spent, should be prohibited unless the client gets a full explanation and specifically agrees to an arrangement that is reasonable under the circumstances.

Second, the limits of confidentiality should be more explicit and evaluated to determine if the rule should apply equally to corporations and individuals. A lawyer should be released from the binds of silence whenever a client's actions have a reasonable probability of resulting in substantial physical harm to any individual or to the public, regardless of whether the client's act is a crime or how "imminent" the danger. Moreover, the attorney-client privilege, often confused by the courts with the concept of confidentiality, has been abused by tobacco and drug companies to an extent that it's perimeters should be re-examined.

Third, law firm discipline rules should be considered in light of New York's recent adoption of such rules. There is far too great a disparity between the discipline meted out to small firm lawyers and those in large firms, even though large firm lawyers are likely participating in unethical conduct. Only by prosecuting large firm lawyers as well will it be clear that discipline is even-handed, and that no unethical lawyer is immune from prosecution.

Fourth, and most important, the Commission should ensure that the needs of the client are fully considered in the rule drafting process by choosing bright public members and lawyers from small firms, legal aid offices and the public sector. The perspective of the client has not been adequately considered by the ALI and the lawyers involved in the drafting of the Restatement of the Law Governing Lawyers. The end result is that the needs of law firms and institutional clients have been made paramount to the needs of the client. If lawyers want to continue to have the right to regulate themselves, they must be continually reminded of their fiduciary duty by public members.

I am happy to provide further information on my testimony should you request it.



Very truly yours,


Carol M. Langford