SUMMARY OF HOUSE OF DELEGATES ACTION ON ETHICS 2000 COMMISSION REPORT

The House began debate of Report 401, the Ethics 2000 Commission's recommended changes to the Model Rules of Professional Conduct, at the August 2001 Annual Meeting in Chicago and completed it at the February 2002 Midyear Meeting in Philadelphia. The changes to the Model Rules as proposed by the Commission and amended by the House during its debate became official ABA policy at the completion of the House vote on the Report on February 5, 2002.

Please note that the amendments are shown as changes to the Rules as proposed by the Commission.

The House vote at this meeting began with the Preamble and ended with Rule 1.10. Of the 13 amendments submitted, one was proposed by the Commission and adopted, three were adopted after debate, seven were defeated after debate and two were withdrawn.

The amendment proposed by the Commission was a clarification of Comment [13] to Rule 1.6.

Three amendments were adopted after debate: an amendment to remove the writing requirement in Rule 1.5; an amendment to delete proposed Rule 1.6(b)(2) on preventing a client's crime or fraud (in light of the House's action in deleting (b)(2), the Commission withdrew its proposed 1.6(b)(3) on rectification or mitigation of financial injury); and an amendment to remove the screening provision from proposed Rule 1.10.

Seven amendments were defeated after debate: an amendment to add a reference to law practice management to the Comment of Rule 1.1; an amendment to change the standard in proposed Rule 1.6(b)(1) to "imminent;" an amendment to delete the requirement in proposed Rule 1.7 that consent to a conflict be in writing; an amendment to delete language regarding experienced users of legal services from the proposed Rule 1.7 Comment on consent to future conflicts; an amendment to delete proposed Comment [34] (on organizational clients) to Rule 1.7; an amendment to delete proposed Rule 1.8(j) on sexual relations with clients and replace it with a Comment; and an amendment to delete proposed Rule 1.8(j).

Two amendments were withdrawn before debate: an amendment to delete the requirement in proposed Rule 1.9 that a former client give consent in writing; and an amendment to bar lawyers involved in litigation from making use of screens in proposed Rule 1.10.

The House of Delegates completed its review of the recommendations of the Ethics 2000 Commission, beginning with Rule 1.11 and ending with Rule 8.5. It approved Report 401 as amended during the debate. Rules 5.5 and 8.5 were not included in the debate because they fall under the jurisdiction of the Commission on Multijurisdictional Practice.

Of the 12 amendments that were submitted on the Report, three were accepted by the Ethics 2000 Commission as friendly; five were rejected by the House after debate; and four were withdrawn. In addition, the House considered one motion to reconsider a rule that was debated during the Annual Meeting in August 2001. Prior to the final vote on Report 401, the House approved two sets of conforming amendments: one set based on action taken by the House during the Annual Meeting in August; and one set based on action taken during the Midyear Meeting in Philadelphia.

The three suggestions that were accepted as friendly amendments were an amendment to Rule 1.17 regarding sale of an area of practice; an amendment to Rule 4.2 clarifying and relocating Comment [5]; and an amendment to Rule 6.1 to encourage pro bono practice.

Five amendments were defeated after debate: an amendment to proposed Rule 1.14 to delete the provision regarding the lawyer's authority to seek appointment of a guardian; an amendment to proposed Rule 3.3 on circumstances under which a lawyer can disclose information to a tribunal; two amendments to Rule 4.2 (one to delete "or court order," and one to require notice prior to obtaining a court order); and an amendment to Rule 4.3 to add information regarding contacts by government lawyers.

Two amendments to Rule 4.2 (regarding Comments [2] and [6]) and amendments to Rules 1.18 and 8.4 were withdrawn.

A motion to reconsider the House's decision on Rule 1.6(b)(1) was defeated after discussion.

Four conforming amendments necessitated by House action in August were included in Report 401 as submitted for the Philadelphia meeting. These were changes to Rules 1.0, 1.2, 1.6 and 1.10.

Four conforming amendments were required by action taken in Philadelphia. Amendments were made to Comments in Rules 1.2 and 1.4 to change the term "mental disability" to "diminished capacity; a change was made in Comment [3] of Rule 1.9 to conform to Rule 1.11 as approved by the House; and a change was made in Rule 3.1 based on a question from the floor during the debate on that Rule.

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