The ABA Commission on Ethics 20/20 announced July 11 that it has revised a possible proposal to grant lawyers and clients latitude to agree on which jurisdiction's conflict of interest rules will apply to the representation.
The draft proposal suggests that this topic should be dealt with by adding a new paragraph to the text of Model Rule 1.7 on conflicts involving a lawyer's current clients. Earlier, the commission had explored whether the topic could be dealt with by augmenting the rule's official commentary.
The revised proposal would amend the black-letter text of Rule 1.7 to authorize lawyer-client agreements specifying the parties' understanding that the lawyer's work on a matter will be governed by the rules of a specified jurisdiction, provided that certain conditions and limitations are met. (See box.)
“Such an agreement can help lawyers and their clients to predict--with more accuracy than Rule 8.5(b) [on choice of rules] allows--which jurisdiction's conflict rules will govern the lawyer's representation of a client when the matter involves multiple jurisdictions, according to the brief draft comment to the proposed new rule.
This subject is not among the proposed rule changes that the commission has sent to the House of Delegates for debate at the annual meeting in August. See 28 Law. Man. Prof. Conduct 309. Instead, it could appear on the agenda for the 2013 midyear meeting, if the commission decides to move forward with it.
Suggested New Text for Rule 1.7
The ABA Ethics 20/20 Commission has asked for input on this possible addition to Model Rule 1.7, which addresses conflicts of interest involving current clients:
“(c) A lawyer and client can agree that the lawyer's work on a matter will be governed by the conflict of interest rules of a particular jurisdiction, but only if:
“(1) the client gives informed consent to the agreement, confirmed in writing;
“(2) the lawyer advises the client in writing of the desirability of seeking independent counsel regarding the agreement;
“(3) the client has a reasonable opportunity to consult with independent counsel regarding the agreement;
“(4) the selected jurisdiction is one in which the predominant effect of, or substantial work relating to, the matter is reasonably expected to occur; and
“(5) the agreement does not result in the application of a conflict rule to which informed client consent is not permitted under the rules of the jurisdiction whose rules would otherwise govern the matter. See Rule 8.5(b).”
In a cover memo announcing the proposals, commission co-chairs Jamie S. Gorelick and Michael Traynor explained that in an earlier draft the commission had suggested that the authority for choice-of-rule agreements should appear in a new Comment  to Rule 1.7. See 27 Law. Man. Prof. Conduct 575. The commission got an earful on that draft at a hearing earlier this year. See 28 Law. Man. Prof. Conduct 102.
In response to the feedback, Gorelick and Traynor said, the commission decided that the authority for these agreements should be located in the black letter of Rule 1.7 rather than in a comment.
According to the co-chairs, some commenters suggested that the authority for choice-of-rule agreements belongs in Model Rule 8.5, which addresses choice of law and disciplinary jurisdiction. But the commission decided that any proposal for choice-of-rule agreements should solely address inconsistencies among jurisdictions' conflict of interest rules and not other problems such as variations among confidentiality rules, they said.
Practitioners told the commission that choice of law problems are particularly acute in the area of conflicts of interest, the draft report accompanying the suggested amendment to Rule 1.7 indicates. If adopted, the report states, the proposal could help mitigate uncertainty and reduce problems that arise when client matters implicate multiple jurisdictions with varying rules on issues such as which situations present conflicts and whether screening may be used to prevent imputed disqualification.
The report emphasizes that the proposed rule contains several key limitations, including requirements that the client must give informed consent, confirmed in writing, and must be advised of the desirability of consulting independent counsel and given an opportunity to do so.
In addition, the selected jurisdiction would have to be one in which the predominant effect of the work will occur or where substantial work will be performed. Moreover, the choice-of-rule agreement cannot authorize a representation to which consent is impermissible under the rules of the jurisdiction that would govern the relationship under Rule 8.5, the report explains.
According to the report, the commission also will recommend that the ABA ethics committee issue an opinion providing guidance on how to resolve conflicts-related inconsistencies in the absence of the kinds of agreements anticipated by the proposed addition to Rule 1.7.
At the upcoming ABA Annual Meeting in August, the House of Delegates is slated to consider the commission's proposals in four broad subject areas: outsourcing legal services; accommodating increased lawyer mobility; protecting client confidences when using new technology; and using new technology for marketing legal services. See 28 Law. Man. Prof. Conduct 309.
The commission is still seeking input by July 31 on possible approaches for clarifying the point at which a lawyer's virtual practice in another jurisdiction reaches the level of a “systematic and continuous” presence that goes beyond Model Rule 5.5 allows as occasional multijurisdictional practice. See 28 Law. Man. Prof. Conduct 413.
The commission plans to decide later this year whether to make formal proposals on inbound foreign lawyers and fee-sharing. If so, those recommendations will go before the House of Delegates in February 2013.
The new draft proposal and report are posted along with the cover memo on the commission's website at http://www.americanbar.org/groups/professional_responsibility/aba_commission_on_ethics_20_20.html.
Copyright 2012, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
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