Ethics 20/20 Commission’s last proposals draw little dissent
Posted Apr 1, 2013 12:39 AM CST
By James Podgers and Debra Cassens Weiss
Anyone looking for a verbal donnybrook in the House of Delegates during its one-day session at the 2013 ABA Midyear Meeting came away disappointed. While the agenda featured resolutions on a number of timely and important topics, the delegates worked through them with minimal debate and even less dissent.
Most notably, the House adopted four resolutions submitted by the Commission on Ethics 20/20 on voice votes that elicited no more opposition than murmurs of “nays.” Three of the commission’s resolutions propose changes in professional conduct rules to make it easier for foreign lawyers to obtain limited authority to practice in U.S. jurisdictions. The commission’s last resolution deals with how lawyers and clients decide which rules on conflict of interest should apply to matters involving multiple jurisdictions.
The Ethics 20/20 Commission has been working since 2009 to consider possible revisions to the ABA Model Rules of Professional Conduct and related ethics standards in response to the impact of globalization and technology on law practice in the United States. The Model Rules are the basis for ethics codes for lawyers in all the states except California.
The commission approached the midyear meeting in Dallas, which ended on Feb. 11, cautiously because there were potential pockets of resistance to its recommendations on foreign lawyers practicing in the United States. The proposals would limit the scope of that work, as well as require that practitioners from foreign jurisdictions provide assistance only to existing clients and work closely with U.S. practitioners, who would advise on U.S. law.
But some tweaking of the language in the commission’s recommendations in the final days, especially to affirm more clearly that only duly licensed and authorized U.S. lawyers may provide advice on U.S. law, helped offset concerns.
That flexibility reflected the approach the commission has taken from the beginning of its work, said co-chair Jamie S. Gorelick, a partner at Wilmer Cutler Pickering Hale and Dorr in Washington, D.C., during a post-mortem interview with the ABA Journal. “We engaged in abundant consultation,” she said. “There was a lot of input from individuals and other entities that we listened to and responded to.”
Michael Traynor, the commission’s other co-chair, credited the Standing Committee on Professional Discipline with suggesting some key late revisions to the recommendations. “We thought it was a good change, and we had no problem working them out with our co-sponsors,” said Traynor of Berkeley, Calif., a past president of the American Law Institute.
Resolution 107A expands the reach of Rule 5.5(d) of the ABA Model Rules of Professional Conduct to qualified foreign lawyers as well as lawyers from other U.S. jurisdictions. Under the amended rule, a foreign lawyer may provide legal services to an employer in the United States, but advice on U.S. law must come from a lawyer duly licensed and authorized to provide it in the jurisdiction where it is given.
Resolution 107B amends the ABA Model Rule for Registration of In-House Counsel to include foreign lawyers working in the United States, who would be subject to essentially the same restrictions on giving advice on U.S. law that are set forth in the amended Rule 5.5.
Resolution 107C amends the ABA Model Rule on Pro Hac Vice Admission to allow a court or agency in a state jurisdiction to admit, at its discretion, a foreign lawyer in a particular proceeding as long as the foreign lawyer is working with a lawyer from the jurisdiction who has primary responsibility for the case and for advising the client, particularly on the substantive and procedural law of that jurisdiction and other U.S. jurisdictions.
Resolution 107D adds language to the comment to Rule 8.5 of the Model Rules of Professional Conduct recognizing that clients and lawyers in a matter involving multiple jurisdictions should be able to specify the jurisdiction where the predominant effect of the lawyer’s conduct will occur for purposes of a choice of law analysis to determine which jurisdiction’s conflict of interest rules will apply. The amended comment also states that the decision on choice of law should be confirmed by a written agreement between the client and lawyer.
Shepherding the resolutions through the House was the Ethics 20/20 Commission’s final act. The House adopted a series of resolutions sponsored by the commission in August 2012. Now the Policy Implementation Committee of the Center for Professional Responsibility will begin talking to state jurisdictions about adopting the recommendations into their own ethics rules.
“We were asked to look at the impact on the legal profession of changes in globalization and technology,” said Gorelick, “and we did that. We made incremental but important changes in the rules” for still more changes that may be yet to come.
And how will the commission co-chairs reward themselves for their labors? “I’m going to Disney World,” said Gorelick with a chuckle.
In other action, the House:
• Passed two resolutions in support of public defenders who are dealing with excessive caseloads. Resolution 104A urges Congress to create and fund an independent, federally funded Center for Indigent Defense Services to help governments carry out their constitutional obligation to provide effective assistance to indigent defendants. A report accompanying the resolution says, “Today the failure of state and local governments to adequately fund indigent defense is a national scandal.” And Resolution 104C urges state lawmakers to prohibit firing a chief public defender or other indigent-services leader who limits acceptance of new clients in a good-faith effort to ensure competent representation.
• Called for disclosure of secret campaign contributions made through nonprofit groups donating money to super PACs. Resolution 110B urges Congress to require groups exempt from campaign disclosure requirements, as currently interpreted, to disclose the source of funds and the amounts spent. The disclosure should be subject to threshold limits, however, as needed to avoid infringing on the right of free association, the resolution says. Contributions and expenditures by 501(c)(4) nonprofits and 527 political organizations remain largely hidden. One 527 group, known as a super PAC, can accept unlimited amounts of contributions and spend unlimited amounts on behalf of or against candidates. People or corporations seeking to keep political contributions private donate money to 501(c)(4) nonprofits, which in turn donate to super PACs. In filings with the Federal Election Commission, the super PAC lists the nonprofit, “effectively masking the true source of the funds,” according to the report to the House.
• Encouraged lawyers, when appropriate, to consider providing unbundled legal services. A report supporting Resolution 108 says, “Lawyers who unbundle their services in the marketplace charge their full rate, expand their client base because the cost per case is more affordable, and effectively compete with document preparation services.” The resolution also encourages the judiciary, bar associations, court administrations and CLE providers to take measures to ensure that lawyers who provide unbundled services do so with a full understanding of their professional obligations.
• Responded to potential automatic budget cuts on the federal level. Resolution 10A urges federal lawmakers to ensure adequate funding for federal courts and the Legal Services Corp.
• Called for the wording in the Model Grand Jury Charge for federal courts to be changed to recognize the principle that a grand jury is not bound to indict in every case where a conviction can be obtained.
• Provided guidance for an ABA amicus brief in a Supreme Court case, Association of Molecular Pathology v. Myriad Genetics, on the patenting of isolated human genes associated with increased risk of breast and ovarian cancer. The U.S. Supreme Court is considering just one issue in the case: whether isolated genes are “human-made inventions” that can be patented or “products of nature” that may not be patented. The U.S. Court of Appeals for the Federal Circuit ruled on a separate issue that the Supreme Court opted not to consider—the patent eligibility of a Myriad method for screening compounds to determine their use for cancer treatment using an altered gene. The Federal Circuit found the process to be patent eligible because it involves the use of a cell transformed with an altered gene, and thus is not a prohibited law of nature, natural phenomena or abstract idea. Resolution 101A supports the Federal Circuit’s position. The resolution also takes the stance that questions regarding patent eligibility under Section 101 of the patent statute—a section that opens the door to the possibility of obtaining a patent—should be decided independently from other sections of the law that determine patentability based on obviousness, novelty and claim definiteness.