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:
- conduct a comprehensive study and evaluation of the ethical and
professionalism precepts of the legal profession;
- examine and evaluate the ABA Model Rules of Professional Conduct and
the rules governing professional conduct in the state and federal
jurisdictions;
- conduct original research, surveys, and hearings; and
- 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.
Wisconsin
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