California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - MAY 1999
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California Bar Journal

The State Bar of California


REGULARS

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Front Page - May 1999
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News
Lending compassion to a difficult situation
Legal specialist exam set Aug. 29
Board to meet June 25-26
Domestic violence group seeking volunteers
Northern California legal services board to fill five vacancies
Court statistics report now available on CD
For Y2K advice, link through bar's web site
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Trials Digest
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Opinion
Hear the cries this time
A single letter, a big increase
Train time at the ABA
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From the President - Door to justice must be open
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Letters to the Editor
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Legal Tech - Litigation library great for attorneys out of office
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New Products & Services
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MCLE Self-Study
The Disabled Practitioner
Self-Assessment Test
MCLE Calendar of Events
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Discipline
Ethics Byte - What to do when a client goes missing
Attorney charged with exposing clients to deportation
Attorney Discipline
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Public Comment

OPINION

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Train time at the ABA
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By DAVID M.M. BELL
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"The train has left the station!" - a refrain heard often in the disciplinary rule drafting business. In rule speak, of course, it means that the fix is in, that the rule drafters have already made up their minds, have invested in their product and are not going to listen to you.

David M.M. BellIn California, by some accounts, the train leaves the station at the moment a new or amended rule of professional conduct is sent out for public comment by the board of governors. The perception exists that the board, despite its express claims to the contrary, endorses a draft rule at the time it publishes it for public comment, having already bought into its need and its precise language.

In fact, many proposed rules die or are tabled following the comment period. As examples, proposed rules regulating communications with accident victims, placement of advance legal fees and transactional conflicts of interest all have fallen by the wayside in recent years as a result of public comment.

Try as one might to correct the misperception that the proposed rules for public comment are fait accompli, it lingers. As a result, in the current California rule game, savvy players monitor the horizon closely, get their comments to drafters early, and attempt to affect the debate and score their points prior to the development of a public comment draft.

And speaking of trains leaving stations, the ABA Ethics 2000 Commis-sion has just released its first round of proposed amendments to the ABA Model Rules (specifically MR's 1.4, 1.6-1.10, 2.2) for public comment. Although the commission has stated that it intends to take a "minimalist" approach in proposing rule amendments, the amendments found in the initial public comment drafts, dealing primarily with confidentiality and conflicts of interest, are substantial and significant. Proposed amendments that would broaden an attorney's ability to reveal confidential client information are profound.

True to form, the California legal ethics community mobilized to provide early comment to the Ethics 2000 Commission. A California coordinating committee of representatives of our state and county bar ethics committees was formed to circulate and discuss preliminary ABA rule drafts and to facilitate the submission of written comment. As a result, coordinated written comment was submitted to the commission well in advance of the current public comment drafts.

Was it heard? On some issues, apparently so (the commission's adoption of written conflict wavers); on others, apparently not (the loosening of client confidentiality). Overall, the commission appeared to accept California comment that supported its planned amendments, but rejected that which ran counter to them.

Has the train left the ABA station? At this point, I would be surprised if the commission alters its public comment draft significantly prior to recommending adoption to the House of Delegates. This does not mean that it is not worthwhile for California to submit comment, whether in support or opposition. The House of Delegates thus far has taken no formal position on these drafts. The ABA would love for California to adopt its Model Rules, so I anticipate that the house will be sensitive to California comment.

As such, California attorneys are encouraged to obtain the drafts, check in with their state and county ethics committees to learn what already has been said, and consider commenting. It will make a difference.

David M.M. Bell, now in private practice, formerly was State Bar director of professional competence, overseeing rule development and the Ethics Hotline. He can be reached at dmbell@dnai.com.