OVERVIEW OF ETHICS 2000 COMMISSION AND REPORT CHARLOTTE (BECKY)

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Creation of the Commission:

OVERVIEW OF ETHICS 2000 COMMISSION AND REPORT

Charlotte (Becky) Stretch


CREATION OF THE COMMISSION

  1. Appointment in mid-1997 of the 13-member commission by then-incumbent ABA President Jerome J. Shestack, his immediate predecessor, N. Lee Cooper, and his successor, Philip S. Anderson, with approval by the Board of Governors.

  2. The Commission was charged with undertaking a comprehensive evaluation of the Model Rules of Professional Conduct.

  3. Members included a state supreme court chief justice, a federal circuit court judge, a state court trial judge, a retired judge who is also a former dean and law professor, two professors of legal ethics, one of whom was the principal drafter of the Model Rules, a lawyer formerly with the Department of Justice, several private practitioners, a former in-house counsel, and a nonlawyer member, who is a former college president and member of numerous corporate boards.

  4. The Commission appointed two Reporters: Chief Reporter Nancy J. Moore, a professor of legal ethics at Boston University and an Adviser to the Restatement of the Law Governing Lawyers; and Carl Pierce, a professor of legal ethics at the University of Tennessee and also reporter to the committee in Tennessee proposing revisions to the Tennessee Rules of Professional Conduct. Professor Tom Morgan, a professor of legal ethics at George Washington University, also served as a Reporter for one year.


REASONS FOR UNDERTAKING THE PROJECT

  1. Growing disparity in state ethics rules – 44 states use the Model Rules format but with some significant variations

  2. Lack of clarity in some existing rules; some dissonance between rules and comments

  3. New issues and questions raised by the influence that technological developments are having on the delivery of legal services

  4. Continuing need to expand access to legal services to low and moderate income persons

  5. Changing organization and structure of modern law practice

  6. The Commission was also mindful of

    1. the need to enhance public trust and confidence in the legal profession

    2. special concerns of lawyers in nontraditional practice settings

    3. increased public scrutiny of lawyers.


COMMISSION’S GOALS

1. Update the Model Rules in light of developments since the Rules were adopted in 1983.

2. Take a position of leadership in proposing rules the Commission thinks make the most sense and have the potential to bring greater uniformity among the states.


WHAT THE COMMISSION DID

  1. The Commission examined and updated the Model Rules of Professional Conduct to assure the Rules continue to work in today’s environment and to provide better guidance to the profession.

  2. The Commission, through its open process, sought, received and acted upon viewpoints from throughout the legal community.

    1. 250 member Advisory council – including representative from sections, bar associations, law schools, consumer groups, the judiciary

    2. 50 days of meetings

    3. 10 public hearings

    4. Review of comments on the public discussion drafts

    5. Use of the Internet to distribute information about the Commission's work

    6. Issued a Report in November 2000 that was posted on the Commission’s Website and included: an Executive Summary; a copy of the proposed Model Rules; a comparison between the proposed Model Rules and the current Model Rules; and a Reporters’ Explanation of Changes

    7. Revised the Report after considering comments on the November Report and submitted a Final Report in May 2001 for debate by the House of Delegates in August 2001 (Debate continued in February 2002.)

  3. Examined state variations on the Model Rules, case law, and differences between the Model Rules and the new Restatement of the Law Governing Lawyers

  4. The Commission concluded that fundamentally the Model Rules work

    1. Retained the basic architecture of the Rules

    2. Maintained core values

    3. Did not proposed radical changes or overhaul the Rules

    4. Decided not to add best practice or professionalism concepts to the Rules.


CHANGES THE COMMISSION MADE - SUMMARY

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

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

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

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

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

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

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

8. Increased protection of third parties


CHANGES THE COMMISSION MADE - DETAIL

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

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

  1. b. Added a writing requirement in key Rules (e.g., 1.7, 1.8, 1.9)

  2. 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: emphasized the lawyer's obligation not to charge an unreasonable fee

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

NOTE: This recommendation was not passed by the House of Delegates

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

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

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

  3. Rule 1.17: deleted provision that allowed the 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

    1. Rule 1.10: eliminated imputation of most personal interest conflicts

    2. Rule 1.10: added a provision for screening of lateral hires under certain circumstances

NOTE: This recommendation was not passed by the House of Delegates

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

d. Rule 1.17: permitted sale of a law practice to more than one person as long as the entire practice is sold, and permitted sale of an area of practice

e. 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 NOTE: This recommendation was not debated due to the pending report of the Commission on Multijurisdictional Practice

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

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

h. 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

NOTE: This recommendation was not debated due to the pending report of the Commission on Multijurisdictional Practice

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

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

  2. 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 and Comment to provide better guidance and explanation to lawyers

a. Rule 1.0: added a new Rule on Terminology, and several new defined terms

  1. Revised and expanded the Comment throughout to clarify the operation of the Rules

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

  3. Rule 1.3: clarified the lawyer's authority and duty to take certain actions on behalf of the client

  4. Rule 1.6: clarified the lawyer's ability to disclose information to comply with law or court order

  5. Rule 1.7: reorganized the text and Comments 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

  6. Rule 1.8: clarified several subparagraphs

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

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

  9. 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

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

  11. Rule 4.2: clarified application of the Rule to organizational clients

  12. 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

  13. Rule 8.3: conformed the scienter requirement to be consistent with Rule 1.0

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

  15. 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

NOTE: This recommendation was not debated due to the pending report of the Commission on Multijurisdictional Practice

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

a. Rule 1.6: added provision to permit a lawyer to disclose information to obtain legal advice regarding the lawyer's compliance with the Rules

b. 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

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

d. 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. Increased protection of third parties

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

NOTE: This recommendation was not passed by the House of Delegates.

b. Rule 1.6: broadened the grounds for discretionary disclosure to prevent reasonable certain death or substantial bodily harm

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

d. 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

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

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

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

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

i. 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





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