Among them is what has proved to be a controversial bias and discrimination “black letter” rule under debate in the American Bar Association and a sweeping set of new regulations (and plenty of small tweaks) for the nation’s largest state bar group.
Here are three sets of proposed attorney rule changes to keep an eye on in the second half of 2016:
ABA Grapples With Broader Rule on Bias and Harassment
Later this summer, American Bar Association leaders will grapple with a proposed revamp of a bias and harassment misconduct rule that has proven to be one of the most divisive proposed changes of recent years.
While the current Rule 8.4 of the ABA Model Rules of Professional Conduct on discrimination or harassment is limited to such behavior “in the course of representing a client” and to actions prejudicial to the administration of justice, the current version of amended black-letter rule would expand that language to include any such conduct “related to the practice of law.”
A comment on the amended rule further defines misconduct as including bias or harassment against witnesses, coworkers, court personnel, or other lawyers, in the operation of a practice, or at business or social activities connected to the practice of law. The proposed rule, first circulated late last year, drew heated debate at the ABA’s February meeting in San Diego and has garnered hundreds of public comments from law groups and individual practitioners.
Many among the opposition have described the new language as overly broad or vague, and argue it would allow highly subjective interpretations of bias that don’t jibe with legislative and case law interpretations.
Wendi Lazar, a partner at employment firm Outten & Golden LLP and a member of the ABA Commission on Women in the Profession, said the model rules were intended to set a high standard for the profession rather than mirror existing law.
“I think the opposition’s legal rationale, if there is one, is that we know what fraud is, we know what criminal behavior is ... but when it comes to discrimination, there are some in the bar worried that it will come to a subjective finding,” she said. “The words bias and harassment, we know what they mean, and there is really no excuse for someone in 2016 to be harassing or discriminating against other lawyers or clients.”
The rule proposal is to be considered by the House of Delegates at the bar’s annual meeting in August in San Francisco.
California Attorney Conduct Gets a Makeover
California, the only state that does not organize its conduct rules to mirror the ABA code, is in the midst of a long journey to overhaul its bar rules. In addition to bringing the format of the rules in line with other jurisdictions, the state bar is now considering a sweeping set of new rules and amendments.
James Ham of Pansky Markle Ham LLP, commissioner of the bar’s Rules Revision Commission, said the revised code will keep its focus on nuts-and-bolts regulation and eschew many of the “aspirational” aspects of the ABA model rules. Ham said the bar’s quarter-of-a-million membership should consider many substantive updates and additions that are being offered among dozens of changes under consideration.
They include changes to the definition of professional competency; a new prohibition against the use of litigation delay tactics; a revamped fee division rule; the adoption of new requirements on firm managers and supervisors to ensure subordinates work within the rules of conduct; and a discrimination rule more far-reaching than the one being debated at the ABA.
The current draft would also release California lawyers from a strict requirement to get conflict waivers even in situations in which there is virtually no possibility that clients’ interests will diverge.
“It’s a liberalized rule under which the lawyer would only have to get a waiver if there is a reasonable likelihood that the interests of clients are going to conflict,” he said.
In June, the bar’s Board of Trustees opened the proposed changes — the executive summary and rules run to 287 pages — to a 90-day public comment period. A separate comment period was opened for the proposed discrimination and harassment rule.
Once revised, the changes will be made available for a second round of public comments. A draft is expected to be submitted to the Supreme Court of California in the first quarter of next year.
New York's 'Bricks and Mortar' Office Rule
The U.S. Court of Appeals for the Second Circuit is considering calls for a review of a split decision backing a New York law requiring nonresident attorneys to have a physical office in the state.
In April, the circuit court in a 2-1 decision overturned a district court ruling that the requirement, New York Judiciary Law Section 470, was unconstitutional.
The majority said the statute was enacted to help ensure every licensed New York lawyer could practice in the state and concluded that the New Jersey lawyer who challenged the law, Ekaterina Schoenefeld, didn’t have evidence of a protectionist intent.
In a dissenting opinion, Circuit Judge Peter W. Hall said the law discriminates against nonresident lawyers and that the majority hadn’t borne its burden to show how a substantial public interest justified the restriction.
The New Jersey State Bar Association and the Association of Corporate Counsel have filed amicus briefs in support of a pending petition for an en banc review.
David B. Rubin, who represents the New Jersey bar, said his state’s rescission three years ago of its “brick and mortar” rule has not hurt clients’ ability to find their lawyers.
“That was the original rationale for the New York law years ago, but in this day and age as we all know, a lot of lawyers ... aren’t hanging around their office and clients are too busy to come to offices,” he said. “Phones, faxes, FedEx, email, we have more modes of communication than ever, and if there is a real solid policy reason for New York’s rule, I’m not aware of it.”
--Editing by Sarah Golin and Kelly Duncan.