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Attempt to Relax Conflicts Rules Falls Short at ABA Annual Meeting
The National Law Journal
August 13, 2008
A bid to relax attorney ethics rules regarding conflicts of interest in private law firms was rejected by one vote at the American Bar Association House of Delegates meeting Tuesday.
The vote, 192-191, postponed indefinitely the House of Delegates' consideration of a rule change that would have relaxed conflicts of interest safeguards regarding attorneys moving from one law firm to another. The rejection of the recommendation hinged on a last-minute amendment to the proposed rule change, a modification that, some delegates asserted, required further attention before a vote.
The change to the Model Rules of Professional Conduct would have treated lateral attorneys the same way it addresses attorneys who move from government jobs to private law firms.
It would have enabled a law firm to "screen" the incoming attorney from the rest of its attorneys and to continue representing its client without the consent of the incoming attorney's former client. The Model Rules are not binding on states, but all states have adopted them in whole or in part for their own attorney ethics rules.
The ABA is expected to reconsider the recommendation at its midyear meeting in February.
Drinker Biddle & Reath partner Lawrence Fox called for the ABA delegates on Tuesday to consider the seriousness of the change and to devote more time in vetting the matter.
"This is the Model Rules of Professional Conduct, not a policy statement on whether we like corned beef sandwiches," he said at Tuesday's session.
Proskauer Rose partner Steve Krane urged delegates to take up the matter during Tuesday's session, adding that nearly half of the states have adopted some form of firm-to-firm screening.
"The Model Rules of Professional Conduct is a living, breathing document capable of adapting to changes in the practice of law," Krane said.
11TH-HOUR AMENDMENT
The 11th-hour amendment sought to add language that required an attorney's new law firm to inform the former client that a judicial review was available to determine whether the parties had complied with the conflicts rule.
The amendment also sought to add language stating that the attorney's new law firm had the burden of showing that no confidential information was transmitted to the new firm. Further, the amendment added language stating that a client affected by the attorney's move and the attorney could seek a judicial review of the screening mechanism used.
Proponents of permitting firm-to-firm screening say that the rule change would match the reality of legal practice, where lateral attorney movement is common and where the current rules are overly burdensome. Opponents argue that a change would erode client confidentiality and attorney loyalty.
Tuesday's session was the second and last of the House of Delegates at this year's annual meeting of the ABA. The 546-member House of Delegates is the policymaking body of the legal group, which has about 400,000 members.
Also on Tuesday, the House of Delegates approved a proposal to change the ABA's mission statement and its stated goals. The House of Delegates approved a new mission statement, which reads, "To serve our members, our profession and the public by defending liberty and delivering justice as the national representative of the legal profession."
The former mission statement read, "The Mission of the American Bar Association is to be the national representative of the legal profession, serving the public and the profession by promoting justice, professional excellence and respect for the law."
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