Proposed ABA model rules speak to admission on motion, multijurisdictional practice, disclosure of confidential information, and choice of law provisions in lawyer-client agreements.

As this issue of the IBJ was going to press, the ABA Commission on Ethics 20/20 released four proposals for amendments to the Model Rules of Professional Conduct, together with an invitation for comments.

The proposals apply to admission on motion, multijurisdictional practice, disclosure of confidential information, and choice of law provisions in lawyer-client agreements. The commission has summarized its proposals in a memorandum dated September 8, 2011, which is publicly available on the ABA's website.

Easing the way for admission on motion, MJP

In August 2002, the ABA's House of Delegates adopted an unnumbered Model Rule on Admission by Motion. It provides that lawyers who are admitted in one U.S. jurisdiction may, upon motion, be admitted to practice in another jurisdiction on showing that they have met certain requirements, including having been engaged primarily in the active practice of law in at least one U.S. jurisdiction for five of the seven years immediately preceding the motion. Now, the commission recommends an amendment to this rule that would reduce the number of years of active practice required to three from five.

The commission said it also intends to ask the ABA to adopt a resolution urging jurisdictions that have not adopted the model rule to do so as well as to refrain from imposing any additional restrictions. (Illinois's rule on admission by motion is SCR 705, which is substantively similar to the ABA's model rule but does not track the model rule's language.)

Next, the commission proposes creating a new subsection of Model Rule 5.5 (Unauthorized Practice of Law, Multijurisdictional Practice), Rule 5.5(d)(3). Proposed new Rule 5.5(d)(3) would permit lawyers qualified to practice in one jurisdiction to practice in a new jurisdiction before actually being admitted as long as they are diligently pursuing admission through one of the procedures that the new jurisdiction authorizes, including admission by motion or taking and passing the new jurisdiction's bar examination.

The proposal would also modify Comment [4], explaining the meaning of subsection (b)(1) of the rule, which provides that a lawyer generally shall not establish "an office or other systematic and continuous presence" in a jurisdiction in which the lawyer is not admitted to practice. The commission proposes adding language to the comment to clarify that a virtual presence in the jurisdiction, by, for example, directing electronic advertising to clients in the jurisdiction, might result in a "systematic and continuous presence" within the meaning and in violation of the rule.

New conflicts proposals

The commission also proposes amending Model Rule 1.6, which encompasses a lawyer's duty of confidentiality. To subsection (b), which permits disclosure of information relating to the representation of a client under certain circumstances, the proposal would add a subparagraph (7), permitting disclosure "to determine if a conflict of interest would arise from the lawyer's association with a firm, but only when there is a reasonable possibility of such an association and the revealed information would not adversely affect the lawyer's client."

The commission's proposed language would also prohibit the lawyers receiving the information from using it for any purpose other than identifying and resolving potential conflicts of interest. The proposal includes adding a new comment (14) explaining the amendment and renumbering the subsequent comments.

Finally, the commission seeks to amend Model Rule 1.7 (Conflict of Interest: Current Clients), regarding choice of law provisions in lawyer-client agreements, by adding a new comment [23] and renumbering the subsequent comments. The new comment recognizes that a lawyer may perform work for a client in multiple jurisdictions and permits the lawyer and client to agree that their relationship concerning the matter will be governed by the conflict rules of a specific United States or foreign jurisdiction, provided that the client gives informed consent and several other conditions are met.

Though it has not yet taken a position on a related matter, the commission also seeks input on a proposal that would amend subsection (a) of Model Rule 1.10 (Imputation Of Conflicts Of Interest: General Rule). Currently, the subparagraph reads "While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless…."

The proposal would add language to the subparagraph, as indicated by italics: "While lawyers are associated in a firm, none of them who are acting in a substantially related matter in this or any other jurisdiction in the United States shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9,…." The commission said the proposal would address a competitive disadvantage that U.S. law firms have relative to law firms that do not have offices in the United States.

The memorandum and proposals are publicly available on the ABA's website through http://www.americanbar.org/groups/professional_responsibility.html. Comments should be submitted to Senior Research Paralegal Natalia Vera at natalia.vera@americanbar.org by November 30, 2011. Lawyers need not be members of the ABA to comment.