Work on Ethics Rules Can be a Lesson for All Lawyers

Multi-jurisdictional, multi-disciplinarian trend of profession key consideration

Recent work by lawyers both in New York and California are leading to changes in those states’ ethics rules.  Experts in the field talked about those changes during a Sunday Annual Meeting program.

Moderator Rebecca Lamberth, incoming chair of the Business Law Section’s Committee on Professional Responsibility and moderator for the session, said she found analyzing the differences between the state rules and the ABA Model Rules helpful from the standpoint of thinking about how the rules should be applied, how other jurisdictions may rule, and in answering the question, “How can I counsel my lawyer clients who are trying to avoid trouble?”

Kevin Mohr of Fullerton, Calif., who was a consultant to the State Bar of California in drafting revisions of that state’s rules, provided a synopsis of how the committee of lawyers he led drafted and provided transparency in its work.   The group’s charge was to evaluate California’s Rules of Professional Conduct, which were the only state’s rules not based on the ABA Model Rules.

The last revision to the state’s rules was made in 1992, noted Mohr.  Since then, there naturally have been considerable statute developments and new case law to consider.  The ABA Ethics 2000 Commission findings, as well as the ABA Model Rules, New York’s ethics rules and existing California rules, were all referenced in suggesting and drafting changes, keeping in mind the multi-disciplinary, multi-jurisdictional changes in the legal profession.

Specifically, the committee sought to eliminate ambiguity in facilitating compliance; protect clients; maintain and increase confidence in the profession; and eliminate unnecessary differences between ethics rules.

Initially, the committee worked off of California rules, but the focus shifted to changes based more on the ABA Model Rules. The draft now is based on the ABA Model Rules in structure, format and, often, syntax.  Transparency of the process was also emphasized, with public meetings, information posted on the California bar’s website and a multi-faceted comment period.

The New York experience also led to that state changing, not in its substance, but in its numbering of rules to now align with the ABA Model Rules.  This will assist lawyers looking for guidance more easily, said Bill Freivogel, outgoing chair of the section’s Professional Responsibility Committee.

Among the major thorny issues are those relating to confidentiality as well as conflict of interest, noted panelist Geoff Hazard of San Francisco.

The program was titled “The New Ethics Rules in New York and California: Their Impact on Business Lawyers; Comparison with ABA Model Rules.”  The Annual Meeting program was sponsored by the Business Law Section.