Board puts ABA Model Rules changes on hold

first_img June 15, 2004 Senior Editor Regular News Board puts ABA Model Rules changes on hold Board puts ABA Model Rules changes on hold Gary Blankenship Senior Editor Following an objection from the City, County and Local Government Law Section, the Bar Board of Governors has postponed acting on proposed Bar rule changes stemming from changes to the ABA Model Rules.Board member Ervin Gonzalez said he was contacted by section officials who said disclosure requirements in the proposed rules, as well as current Bar rules, place extra requirements on government lawyers. He said section officials thought the problems could be worked out in about 30 days, in plenty of time for the board to take up the rule changes at its August 13 meeting.According to a letter to the board from section Chair Craig H. Coller, the problem is “these proposed rule revisions touch upon the time-honored concepts of attorney-client confidentiality and conflicts of interest and suggest that government lawyers have a special duty to expose wrongdoing that may involve the disclosure of attorney-client communications.”Coller wrote that a specific problem is with the comment to Rule 4-1.13. “Both the current rule and the clarifying proposed rule continue to impose a specific duty on government lawyers to prevent wrongful acts by the government officials who are their ‘clients,’” he said.Another problem is with the consolidation of several rules in proposed Rule 4-1.11, Coller noted. The change “would require government lawyers to regularly inform their varying government clients. . . that the representation by the government lawyer may be adverse to the interests of another branch of the government, and to confirm the informed consent in writing. In short, government lawyers will be exposed to greater violations of the Rules of Professional Conduct when performing their ordinary duties as government lawyers or government organizations,” he wrote.“They believe it can be resolved,” Gonzalez told the board of the section’s concerns. “They believe these rules are so adverse to them and city, county, and local government attorneys, that it may cause local governments not to hire attorneys.”Skip Smith, representing the special committee that reviewed the ABA model rule changes and recommended amendments to the Bar rules, noted most of the issues the section objected to were already in the rules and were merely being moved from one section to another.He also said the requirement to confirm potential conflicts in writing meant that the lawyers had to provide the notice in writing, not that an acknowledgment had to be signed by their employers. The objections also, Smith said, apply to only a couple of the many recommendations made by the committee.But the board, at its May 28 meeting, voted 20 to 16 in favor of Gonzalez’s motion to table the rules to consider the section’s concerns.The Special Committee to Review the ABA Model Rules 2002 has spent almost two years reviewing the ABA recommendations and then suggesting changes to Bar rules. The panel accepted some ABA proposed changes, but rejected others.The amendments clarify some conflict of interest rules, state that an attorney interviewed by a potential client owes a duty of confidentiality to that person even if another attorney is hired, and provide guidance to lawyers when they are hired to act as a third-party neutral. The changes also provide a safe harbor in the trial publicity rule and some alterations in duties of prosecutors.The report can be found on the Bar’s Web site at, by clicking on the “Organization” and “Special Committee” headings.last_img

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