AT ITS MID-WINTER meeting in Philadelphia, the American Bar Association House of Delegates continued its consideration of the changes to the Model Rules of Professional Conduct proposed by the Ethics 2000 Commission. The House considered Rules 1.11 through 8.5.

Of particular note for New Hampshire lawyers were changes to Rule 1.14, which currently sets out standards for dealing with a client with a "disability."

The commission recommended that this rule be changed in three significant ways. In 1.14(a), the term "disability" was replaced with the phrase "diminished capacity." In 1.14(b), four conditions are set out that must exist before a lawyer may seek guardianship for a client with diminished capacity, and guardianship is specifically identified as a last-resort process. In 1.14(c), a lawyer is given leave to disclose client confidences concerning diminished capacity only to the extent necessary to protect the client. The proposed amendments to this rule passed. The Los Angeles County Bar Association filed a motion to remove the breach of confidentiality language from the last sentence of the proposed Rule in sub-section (c). That motion was opposed by John Pickering of the Committee on Legal Problems of the Elderly and the Senior Lawyers Division. The motion failed.

Rule 1.17 provides guidance on the sale of a law practice or an area of law practice. This proposal was sponsored by the Solo and Small Firm Committee and gives guidance to a lawyer who wishes to sell a law practice or some specific area of practice in which the lawyer no longer plans to be engaged. Rule 1.18 is a new rule dealing with prospective clients, conflicts and confidentiality. This rule gives more guidance to practitioners who speak with prospective clients.

Rule 2.4 deals with lawyers who act as third-party neutrals and sets some standards for lawyers who act in that capacity.

Rule 3.3 (Candor Toward Tribunal) was amended to specifically acknowledge that disclosure of confidential information by the lawyer is a proper remedy under some circumstances, despite the provisions of confidentiality and Rule 1.6. The LA County Bar Association sought to delete this provision and, again, their motion failed.

Amendments to Rule 4.2 regarding "Persons Represented By Counsel" engendered lively debate. This rule was of interest to both civil lawyers, particularly those in the civil rights and employment law fields, and to lawyers who do criminal defense work. The rule provides that a lawyer who wants to speak to one who the lawyer knows is represented by another lawyer may seek a court order to permit such contact with an otherwise represented person. Larry Fox of Philadelphia, a member of the Ethics 200 Commission, sought to strike that language. He was opposed by Phil Anderson, former ABA president. The Fox amendment failed. Anthony Vitale of California sought to amend the provision to provide for a court order "obtained on prior notice." This was opposed by a fellow Californian, the Honorable Laurie Zelon of Los Angeles, and it, too, failed. The New Hampshire delegation supported the changes to Rule 4.2.

In other action:

• Rule 4.4(b) was amended to provide guidance when a lawyer receives documents not intended for the recipient.
• Rule 5.1 was amended to provide that a law firm and managing attorney may be responsible for the violations of ethics rules of others within a firm, and this was carried over to Rule 5.3 dealing with non-lawyer assistants.
• Rule 5.4 was amended to permit fee sharing with a non-profit organization.
• Rule 6.1 had a new sentence in comment 11 that enables law firms to encourage pro bono service by its lawyers.

There were various other minor amendments to a variety of rules in the Model Rules. The report from the American Bar Association on the latest changes to the rules can be found at www.abanet.org/cpr.

Issues relating to multi-jurisdictional practice were deferred and will not be considered until such time as the Multi-Jurisdictional Practice Commission makes its report (Rules 5.5 and 8.5).

L. Jonathan Ross, of Wiggin & Nourie in Manchester, is the New Hampshire Bar Association delegate to the ABA.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer