|"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.
In 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
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 firstname.lastname@example.org.