June 9, 2001

ABA ETHICS 2000 COMMISSION
FINAL REPORT - SUMMARY OF RECOMMENDATIONS

Margaret Colgate Love

Margaret Love is a member of the Ethics 2000 Commission and of counsel to the Washington, D.C. firm of Brand & Frulla. The original version of this summary memorandum was published in the Winter, 2000 issue of The Professional Lawyer. Since then it has been revised several times as the Commission's recommendations developed and posted on the Commission's website. (http://www.abanet.org/cpr/ethics2k.html)

The American Bar Association Commission on Evaluation of the Rules of Professional Conduct (the "Ethics 2000" Commission) was established in the spring of 1997 to undertake a comprehensive study and evaluation of the ABA Model Rules of Professional Conduct in light of developments in the law and in the legal profession since the Rules' adoption in 1983. Experience had revealed substantive shortcomings in some rules and lack of clarity in others, and the need to reconcile text and commentary in a number of cases. Moreover, while 38 states and the District of Columbia had by then adopted some version of the Model Rules, there were significant variations in particular rules from jurisdiction to jurisdiction. (Since 1997, three additional states have adopted some version of the Model Rules.) The desirability of a complete review of the rules to promote national uniformity and consistency was underscored by the extensive and innovative interpretive work of The American Law Institute's Restatement of the Law Governing Lawyers (the "Restatement"), then nearing completion.

In the four years since its establishment, the Commission has met frequently, held public hearings, and circulated public discussion drafts of all of its proposed rule changes, as well as several proposed new rules. It has opened its meetings to the public, engaged in regular communication with its 250-member advisory council, reached out to special interest groups, and posted its discussion drafts and meeting minutes on the Internet. It has received hundreds of comments, which have resulted in numerous responsive modifications in its proposals. After publishing a report with a complete set of recommended rules changes in November 2000, the Commission received additional comments and met with numerous interested entities. Its final report was filed in May 2001, and reflects a number of changes made in response to comments received. The Commission expects debate in the ABA House of Delegates to begin in August 2001.

At the outset, the Commission determined that it should take a relatively "minimalist" approach to its task, retaining the basic format and approach of the Model Rules, and generally clarifying and refining rather than making major changes in particular rules. Its presumptive operating principle was to make no change unless substantively necessary - although as time went along, it found more and more that fell into this category. In the end, the Commission decided to propose a number of significant substantive changes to the existing rules, as well as several entirely new rules. It has also proposed numerous editorial and stylistic changes in the interest of clarification, and amplification to commentary to provide additional guidance in interpreting and applying the rules. It decided early on not to include aspirational "good practice" notes following each rule, concerned that these would be out of place in a disciplinary code.

In approaching its work, the Commission was influenced by the legal profession's rapidly changing internal and external environment, particularly the expanded scope and complexity of client activities, heightened public scrutiny of lawyers' involvement in those activities, the impact of technology and globalization, and new competitive pressures on law firms (including specialization, multidisciplinary practice and increased use of in-house counsel). These developments have in turn drawn into question traditional jurisdictional limits on the practice of law, the allocation of authority between lawyer and client, ethical restrictions on lawyer mobility and on fee-sharing (with other lawyers and with nonlawyers), the special status of government lawyers under the rules, and the parameters of such time-honored concepts as confidentiality, civility, and conflict of interest. They have raised anew the vexing issue of whether a lawyer's obligation to perform pro bono service should be enforced through the disciplinary process, and a new issue of law firm responsibility for the conduct of its constituent lawyers. The Commission decided that it was important to address these emerging trends, as well as situations in which state versions of particular rules vary widely, in light of the ABA's historical role in developing consensus on ethical standards for the profession. It appreciates, and has often incorporated, the contributions of state experimentation in its effort to produce rules that will commend themselves to uniform adoption.

Summarized below are some of the more significant rule revisions the Commission has proposed in its report to the ABA House of Delegates. Any changes to the rules will not become effective until adopted by the House, and they will not be binding on lawyers unless and until they are adopted by the states.