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Vol. 72, No. 8, August 1999

Ethics

ABA to Evaluate Rules
of Professional Conducts

The Ethics 2000 commission will update the ABA Model Rules of Professional Conduct - upon which Wisconsin's rules are based - for today's legal practice, reflecting changes enacted since the rules were adopted and considering new proposals.

By Dean R. Dietrich

The Commission on the Evaluation of the Rules of Professional Conduct, commonly known as Ethics 2000, is a commission appointed by the American Bar Association to review the Model Rules of Professional Conduct and propose changes or revisions
to update the rules for today's legal practice. The commission is charged to:

1. conduct a comprehensive study and evaluation of the ethical and professionalism precepts of the legal profession;

2. examine and evaluate the ABA Model Rules of Professional Conduct and the rules governing professional conduct in the state and federal jurisdictions;

3. conduct original research, surveys, and hearings; and

4. formulate recommendations for action.

The 13-member commission is comprised of judges, law professors, government lawyers, corporate counsel, civil and criminal practitioners, and a nonlawyer. The commission began its activities in August 1997 and intends to report its recommendations to the ABA in the year 2000.

What the Commission is Considering

The commission is considering the following rules and issues among others:

Rule 1.1 regarding attorney competence. It is suggested that competence should include consideration of having the time to devote to a particular legal matter. The commission also is considering the concerns that have arisen when a trusted lawyer agrees to provide advice in an area where the lawyer is unskilled but with the consent of the client, and circumstances where an agreement is reached to provide legal services only within an agreed upon budget or limitation on payment and how that would address claims of lawyer incompetence.

Rule 1.3 regarding diligence, which is being reviewed to suggest that the rule address not only promptness of providing services but also the duty of "zeal" or the extent of advocacy that will be used by the lawyer in representing the client. This may address the complaints that have arisen regarding lack of civility among lawyers.

Rule 1.4 addressing communication with a client, which may be modified to incorporate various fiduciary duties that would include both loyalty and candor to the client.

Rule 1.6 regarding confidentiality, which has been rejected by a majority of states suggesting that the commission consider instances where an attorney may withdraw from representation of a client for specified reasons, and advise the court or other parties of the reasons for withdrawal. Also being considered is a rule change that would limit the confidentiality requirements from superseding the obligation to report on lawyer misconduct.

Rule 1.7 regarding conflicts of interest. The commission will consider clarifying the rule to address direct adversity conflicts compared to material limitation conflicts and possibly creating one rule governing both situations. The commission also may consider separating personal interest conflicts so they apply only to the single lawyer and not to all lawyers in a law firm. The commission may address situations where it would be considered impermissible to even request a consent from a client to a conflict of interest.

Rule 1.8(b) regarding use of confidential information. The commission is considering whether a prohibition should exist on the use of protected information for the lawyer's personal enrichment regardless of the lack of risk of prejudice to the client.

Rule 1.8(f) involving third-party payment. Changes are being suggested as to the ability of a lawyer to accept reasonable directions from third-party payers and the nonconsentability of some third-party payer arrangements.

Rule 1.9 regarding conflicts with former clients. The commission is considering a provision to clarify the substantial relationship test and clarify the extent of any duty of loyalty owed to a former client.

Rule 4.2 regarding ex parte contacts where problems such as the application of this rule to state and federal prosecutors and the concern for communication with class members are being reviewed, authorized contacts with government officials on matters of public policy, and instances where contacts are reasonably necessary to respond to an emergency. This particular rule has become a focus of the commission because of several ABA ethics opinions and suggestions that federal prosecutors are not covered by state rules of professional conduct.

Rule 8.4 regarding attorney misconduct. The commission will consider adopting several additions regarding sexual relations between attorneys and clients, and a prohibition on a willful refusal to timely pay child support obligations. A rule prohibiting a lawyer from firing or expelling another lawyer because the lawyer refuses to take action contrary to a law or the disciplinary rules also is being considered.

Dean R. Dietrich, Marquette 1977, of the Wausau firm of Ruder, Ware & Michler L.L.S.C., is a member of the State Bar Professional Ethics Committee.

The Ethics 2000 Commission will address several other questions or concerns regarding the ABA Model Rules. Much of the reason for the review of the ABA Model Rules is to consider and review the modifications made by various states to the model rules originally published by the ABA. In Wisconsin, several ABA Model Rules were reviewed and modified by the supreme court after study from a commission of Wisconsin lawyers. Many of the items being considered by the Ethics 2000 Commission will address changes to the ABA Model Rules that already have been addressed in the Wisconsin Supreme Court Rules.

The Ethics 2000 Commission also is considering various changes to the Model Rules reflecting changes in the practice of law. For example, the commission will consider modifying Rule 1.13 regarding entity representation to address the representation of new types of organizations, such as limited liability partnerships or limited liability companies. The commission also may address changes to Rule 1.17 on sale of a law practice to reflect the value of good will in a law practice. Issues regarding candor to the court and dealing with technology issues within the law practice also will be considered.

On Aug. 5, in conjunction with the ABA annual meeting in Georgia, the commission held a public hearing seeking specific, detailed statements on how the current rules should be changed or on suggested new rules. Updates on the commission's work to evaluate the Rules of Professional Conduct can be obtained from the American Bar Association Web site.