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While the Supreme Court’s vast revamping of Pennsylvania’s rules of professional conduct may not contain any revolutionary additions, according to legal ethics experts, lawyers should be paying particular attention to the changes involving a number of key areas, including conflict of interest, confidentiality and fee agreements. The amendments announced Monday, and which will take effect Jan. 1, affect virtually all 110 pages of the state’s professional conduct rules and touch on topics as diverse as selling your practice when you retire (you will soon be able to do so) and starting up a sexual relationship with one of your clients (a definite no-no, in case you were wondering). “There are no major changes, just a lot of fine tuning,” said University of Pennsylvania Law School Professor Geoffrey Hazard Jr., who served on the American Bar Association’s “Ethics 2000″ commission, the recommendations of which were referred to the ABA and local bars, including the Pennsylvania Bar Association. According to Louis Teti, who chairs the Disciplinary Board of the Supreme Court – which approved the changes ultimately recommended by the PBA – a major overhaul of the state’s rules, which were adopted in 1987, has long been in the works. “I think that all attorneys are really going to have to familiarize themselves with the new rules,” said Teti, a MacElree Harvey partner. “Although many of the changes are nuances, they are changes.” Below are analyses of the sections that were either subject to extensive revisions or maintained existing provisions despite conflicting ABA recommendations. “You can’t absorb all the material at once,” Hazard said. “But you should do it in segments, and focus on the important stuff: conflict of interest, confidentiality and fee agreements.” Conflict of Interest “I would urge every lawyer to especially read through the new comments to the conflict of interest rules,” said Cozen O’Connor partner Thomas Wilkinson, who until recently was the co-chairman of the PBA’s legal ethics and professional responsibility committee. “There’s a lot of very useful guidance there.” The comments to Rule 1.7, titled “Conflict of Interest: Current Clients,” deal with issues such as prohibited representations, non-litigation conflicts and organizational clients. Most significantly, Wilkinson and others noted, while the comments dealing with informed consent urge attorneys to obtain from clients a written confirmation of their awareness of any concurrent conflict, they do not require one. “I think that’s too bad,” said Drinker Biddle & Reath partner Larry Fox, who served along with Hazard on the ABA’s Ethics 2000 commission. “I think [a written confirmation] is a great protection both for lawyers and clients.” “We felt that lawyers should not be disciplined simply because a client did not sign [a written confirmation],” Wilkinson said. The ABA’s model rules require a letter of confirmation, but not a signature attesting to informed consent, according to Wilkinson. Under Rule 1.0, “Terminology,” a new definition of “informed consent” has been added that seeks to impress upon attorneys their obligation to personally inform clients “before accepting or continuing representation or pursuing a course of conduct.” “The definitions of certain terms . . . in the 1.0 series are critical to anybody’s ability to practice law,” Teti said. The very act of adopting a definition of “informed consent,” Fox said, will make lawyers more aware of the concept itself. “One of the best parts [of the changes],” Hazard said, “is the improved comments to Rule 1.7 dealing with conflict of interest, which is an unavoidable, continuing problem for every lawyer in private practice.” Confidentiality The comments to Rule 1.6, “Confidentiality of Information,” list a number of scenarios intended to help lawyers deal with ethical problems involving foreseeable death, serious bodily harm or fraudulent activity. For example, a lawyer who knows that a client has accidentally discharged into a town’s water supply toxic waste that could lead to a “life-threatening or debilitating disease” is obligated to disclose that information. Wolf Block Schorr & Solis-Cohen partner Jerome Shestack, who initiated the Ethics 2000 commission while ABA president-elect, noted that under the recent changes, the extent of Pennsylvania attorneys’ obligation to disclose information of financial fraud exceeds the provisions of the ABA’s model rules, but falls short of what other states’ rules require. The changes make clearer that Pennsylvania practitioners are permitted, but not required, to disclose information concerning financial fraud, Wilkinson said; the ABA’s model rules, until only recently, prohibited disclosure of such information. Shestack noted that New Jersey’s rules require the disclosure of such information. According to Fox, one of the most significant improvements to Rule 1.6 was language that allows attorneys to seek legal advice about compliance with any of the state’s rules. “I was very happy to see them change 1.6 to permit lawyers to seek legal advice without breaching confidentiality,” Fox said. Fee Agreements Unlike under the ABA’s model rules, Wilkinson said, Pennsylvania’s recent changes to Rule 1.5, “Fees,” did not alter a referring lawyer’s ability to receive part of a fee even if he or she did not participate in the prosecution of a case. “The rationale behind that is that it’s wise to encourage lawyers to refer cases to practitioners who are most experienced,” Wilkinson said. Wilkinson said that the ABA’s model rule on fees – which requires both that fee divisions be in proportion to the services performed and that the client be informed of the fee split – could be a disincentive to referring to lawyers with the right expertise in a certain area of the law. “We have always prohibited ‘naked referrals,’” Fox said of the ABA’s stance on referrals in which the original attorney does not remain actively involved in the case. Other Important Changes Rule 1.17, “Sale of Law Practice,” has been amended to allow for such a sale “when the seller ceases to engage in the private practice of law in Pennsylvania,” as opposed to only when the seller died or was disabled. Shestack said that while the ABA’s model rules permit the sale of one area of a practice, Pennsylvania’s prohibition against that prevents clients in a lawyer or firm’s less profitable practice area from receiving the short end of the stick when a sale goes through. Hazard noted that a lawyer had been able to circumvent the past provisions of Rule 1.17 by, for example, selling his or her practice to a firm to which he or she later became of counsel. According to the brand-new Paragraph J of Rule 1.8, “Conflict of Interest: Current Clients: Specific Rules,” “a lawyer shall not have sexual relations with a client unless a consensual relationship existed between them when the client-lawyer relationship commenced.” “Most responsible people agree that it’s an offense,” Hazard said. “I think it’s worth being explicit about.” Hazard noted that while many men find such a prohibition either unnecessary or overly politically correct, many women might see the lack of such a rule as indicative of the bar’s being an old boys’ club. “We made it clear in Ethics 2000 that issues of candor arise in depositions and not just the courtroom,” Fox said of arguably the most significant amendment to Rule 3.3, “Candor Toward the Tribunal.” Under Monday’s changes, lawyers are required to disclose, when necessary, statements they know to be false that are made by a witness “before a tribunal or in an ancillary proceeding.” The extent of a lawyer’s duty to be candid in such a situation, Wilkinson said, had not been made clear in the prior version of Rule 3.3. “A lot of lawyers were under the misimpression that they had to correct testimony that was knowingly false [only] when it was given in a courtroom setting,” Wilkinson said. Absent from the slew of changes was any amendment to Rule 1.18, “Duties to Prospective Client.” Wilkinson said that the PBA had wanted to add language clarifying that prospective clients who “lawyer shop” for the purpose of conflicting lawyers out of adverse representation – which commonly occurs among family lawyers in less populated communities – would not be entitled to protection under the rule, paving the way for those lawyers to take cases adverse to the prospective client. Teti and Wilkinson said that the PBA did not offer that provision up for the Disciplinary Board’s consideration until November 2003, two months after the board approved the PBA’s rule change suggestions. Wilkinson said that the PBA has already been preparing CLE programs dedicated to the changes in anticipation of their implementation. “Ethics is something you’ve got to continually keep up on,” Shestack said. “It’s not just a passing fancy.” (Copies of the 111-page order In Re: Amendments to the Pennsylvania Rules of Professional Conduct; No. 30 Disciplinary Rules Docket No. 1 , PICS No. 04-1318 , are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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