Model Rule 2.2

Reporter's Explanation of Changes

Ethics 2000 Commission Draft for Public Comment

March 23, 1999

TEXT:

1. Deletion of Rule

The Commission recommends deleting Rule 2.2 and moving any discussion of joint representation to the Rule 1.7 Comment. The Commission is convinced that neither the concept of "intermediation" (as distinct from either "representation" or "mediation") nor the relationship between Rules 2.2 and 1.7 has been well understood. Prior to the adoption of the Model Rules, there was more resistance to the idea of lawyers helping multiple clients to resolve their differences through joint representation; thus, the original idea behind Rule 2.2 was to permit joint representation when the circumstances were such that the potential benefits for the clients outweighed the potential risks. Rule 2.2, however, contains some limitations not present in Rule 1.7; for example, a flat prohibition on a lawyer continuing to represent one client and not the other if intermediation fails, even if neither client objects. As a result, lawyers not wishing to be bound by such limitations may choose to consider the representation as falling under Rule 1.7 rather than Rule 2.2, and there is nothing in the Rules themselves that clearly dictates a contrary result.

Rather than amending Rule 2.2, the Commission believes that the ideas expressed therein are better dealt with in the Comment to Rule 1.7. There is much in Rule 2.2 and its Comment that applies to all examples of joint representation and ought to appear in Rule 1.7. Moreover, there is less resistance to joint representation today than there was in 1983; thus, there is no longer any particular need to establish the propriety of joint representation through a separate Rule.

COMMENT:

[1] This Comment has been deleted. The Commission believes the term "joint representation" is preferable to "intermediation."

[2] This Comment has been deleted as no longer necessary since the term "intermediation" has been eliminated.

[3] This Comment has been deleted. Some of the material may be found in Comment [27] to Rule 1.7.

[4] This Comment has been deleted. Some of the material may be found in Comment [28] to Rule 1.7.

[5] This Comment has been deleted as no longer necessary after the elimination of the term "intermediation." The Commission will be considering whether to adopt a separate rule on the lawyer's role in various forms of alternative dispute resolution.

[6] This Comment has been deleted. Some of the material may be found in Comments [29] and [30] to Rule 1.7.

[7] This Comment has been deleted. Some of the material may be found in Comment [28] to Rule 1.7.

[8] This Comment has been deleted. Some of the material may be found in Comment [31] to Rule 1.7.

[9] This Comment has been deleted. Some of the material may be found in Comment [31] to Rule 1.7.

[10] This Comment has been deleted. Some of the material may be found in Comment [32] to Rule 1.7.