REGULARS

OPINION

For several years, the ABA's Ethics 2000 Com-mission has been reviewing the ABA Model Rules of Professional Conduct and suggesting modifications to the rules. The process entered its final stage last August, when the ABA's House of Delegates began considering the Ethics 2000 proposals. 

California does not follow the ABA Model Rules, but California on occasion looks to the ABA Rules as a model. The State Bar's Commission for the Revision of the Rules of Professional Conduct is just beginning its own work to review and reconsider our own California rules, and the Ethics 2000 proposals will undoubtedly play a significant role in that process. In this article, I summarize the most significant results of the House's deliberations thus far and also provide a preview of some of the issues remaining to be considered by the House as the debate proceeds at ABA meetings in February and August of 2002.

Confidentiality

The Ethics 2000 Commission proposed a number of significant amendments to Rule 1.6, which governs attorneys' ethical duty of confidentiality. Three controversial aspects of the commission's proposal led to extensive debate at the House. Those three changes all related to the circumstances under which an attorney may reveal a client's confidential information to protect third parties from harm. Under existing Rule 1.6, an attorney may reveal such information only to prevent a client from committing a criminal act which the attorney believes will result in imminent death or substantial bodily injury.

The commission's first proposal in this area eliminated the limitations of imminence and criminality, providing that an attorney may disclose information necessary to prevent "reasonably certain death or serious bodily injury." This proposal is designed to permit an attorney who learns, for example, that a client is contaminating the environment to breach confidentiality to protect the public, even though the contamination is not the result of a criminal act and might not cause harm for many years. Opponents of the change contended that the revised rule would transform lawyers into undercover informants, thus impairing the client's confidence that the client may freely disclose all pertinent information to the lawyer. The House adopted the commission's proposed change by a margin of only a few votes.

The commission's second proposal would have permitted an attorney to reveal confidential information to prevent a client from committing a crime or fraud, if the client had used the lawyer's services in furtherance of the crime or fraud. This proposal drew even more opposition than the first proposal, and the House voted it down by a two-thirds margin. The commission then withdrew its third and broadest proposal, which would have permitted an attorney to break confidentiality to "mitigate or rectify" a client's fraud.

In addition to these controversial proposals, the commission proposed that Rule 1.6 state expressly that an attorney may seek legal advice about his or her ethical duties, even if the attorney must divulge confidential information to the lawyer's lawyer. This change codifies the longstanding consensus that such disclosure is permissible, which is good news to practicing lawyers who find themselves facing ethical dilemmas.

Conflicts of interest

The House considered several significant changes to the conflicts rules. The commission's first proposal would bring the ABA Model Rules closer to the California conflicts rules, which require all disclosures and consents to be written. As things now stand, most disclosures and consents under the Model Rules may be entirely oral. The commission proposed to require that consents under Rules 1.7 and 1.9 be "confirmed in writing," which means that the attorney's disclosure of the conflict to the client and the client's consent may both be given orally, so long as the attorney sends a confirming letter to the client.

Second, the House considered the commission's proposal to permit law firms to use ethical walls to handle conflicts arising from "lateral" attorneys who move from other private firms. Rule 1.10 currently does not permit ethical walls as a means to control the automatic imputation of conflicts from one attorney at a firm to all attorneys in a firm, although many courts have recognized such walls as a defense to disqualification motions. The House rejected this proposal. In California, this question is governed by case law, not by a rule.

With some special exceptions, California courts have not recognized ethical walls as a means to cure conflicts, absent consent of the client entitled to object. However, a recent Ninth Circuit decision opines that the California Supreme Court may be ready to consider permitting firms to use ethical walls. County of Los Angeles v. United States District Court, 223 F.3d 990 (9th Cir. 2000). This is an area that California's commission will undoubtedly be examining, particularly given the increasing use of disqualification motions as tactical devices, increased movement of lawyers between firms and the increasing size of law firms.

Upcoming debates

The House of Delegates will continue debating, and voting, on the Ethics 2000 proposals in 2002. It is possible that some of the issues already discussed might be revisited, particularly those related to confidentiality and screening. Quite a number of Ethics 2000's proposals remain to be considered, including the following:

Revisions to Rule 1.14, which addresses clients with diminished capacity;

A new Rule 1.18, governing duties to prospective clients;

A new Rule 2.4 concerning lawyers who serve as third-party neutrals (e.g., mediators and arbitrators); and

Changes to Rule 3.3 (candor to the tribunal) concerning the degree to which a lawyer should be required to breach confidentiality when the lawyer believes that the tribunal has been misled. (California does not permit such disclosure, contrary to the ABA Model Rules).

Stay tuned.