ABA report sparks proposed rules changes.

A variety of amendments have been proposed to Bar rules by a committee that reviewed the ABA's recent updating of its model rules.

Adele Stone, chair of the Bar's Special Committee to Review the ABA Model Rules 2002, presented the panel's final report to the Bar Board of Governors at its December 5 meeting on Amelia Island.

The board will review the recommendations and is scheduled to act on them at its April 2 meeting in Pensacola.

"Our charge in 2002 from [immediate past Bar President] Tod Aronovitz was to analyze the changes proposed by the ABA [as a result of its Ethics 2000 Commission], compare them to the Bar rules, and recommend whether any Bar rules should be changed," Stone told the board.

The committee agreed with some proposed ABA changes, rejected others, and modified some suggestions, she said.

One notable new area is spelling out a lawyer's duty to a prospective client who meets with but ultimately does not hire the lawyer.

"What are the duties to someone who calls up, and then doesn't follow through on representation?" Stone asked.

The ABA commission found that lawyers have a duty of confidentiality to such prospective clients, and consequently said lawyers could not represent an adverse party without the consent of both parties or the timely screening of the lawyer who had contact with the prospective client. The Bar committee noted such screening is rarely allowed in Bar rules, and so recommended that a modified new Rule 4-1.18 be adopted. It would omit the screening exception and would modify the ABA language to provide a lawyer could not represent the adverse party if the lawyer had information that "could be used to the disadvantage of" the prospective client.

One proposal from the ABA was that whenever client consent was required in the rules that it be confirmed in writing. Stone said that was rejected, although the committee recommended it be added to Rules 4-1.7, 4-1.11, and 4-1.12. That includes the conflict of interest rule which would require that a client waiving an attorney's conflict give an informed consent confirmed in writing. The written requirement may be met by the lawyer memorializing an oral consent in writing sent to the client.

The committee also reviewed proposals from the ABA's Task Force on Corporate Responsibility, which was set up after the Sarbanes-Oxley Act that resulted from corporate accounting scandals. Stone said the committee did not recommend adopting the ABA task force's recommendations for increased disclosure requirements for lawyers on corporate wrongdoing, as those proposals went beyond the requirements of Sarbanes-Oxley.

One change that was incorporated is a requirement for lawyers acting as mediators, arbitrators, or other such "third-party neutrals" to advise nonlawyers that they are not acting as attorneys for the parties, Stone said.

Other changes include:

* Changing the term "consent after consultation" throughout the rules to "informed consent." The ABA said, and the Bar committee agreed, that was clearer language.

* Agreeing with the ABA and changing Rule 4-1.4 to strengthen a lawyer's obligation to communicate with a client and keep the client informed.

* Amending Rule 4-1.10 to clarify that a conflict personal to one attorney does not apply to the entire firm, as long as other lawyers in the from are not affected that one attorney's personal conflict. Also, conflicts of nonlawyers will not be imputed to the entire firm, as long as the nonlawyer is screened from participating in that case.

* Amending Bar Rule 4-1.12 on conflicts to specify that it applies to former mediators and other third party neutrals.

* Amending Bar Rule 4-1.17 that part of a law practice can be sold, or that an entire law practice can be sold to more than one party. The rule currently says a law practice can be sold only to one buyer. "The committee believes that requirement is unduly restrictive and does hot serve to protect the interests of clients," said the committee's report to the board.

* Amending Rule 4-4.4 to provide that an attorney who receives a misdelivered document from another lawyer must promptly notify the lawyer of the mistake. Commentary to the rule gives further guidance but also notes that questions about whether the document is privileged and any other responsibilities of the recipient are beyond the scope of the rule.

* Amending Rule 4-5.4 to clarify that lawyers may share fees with nonprofit, pro bono legal service organizations which have referred cases to them.

Several other editorial and organization changes were also recommended.

Bar members are encourage to reviewed the committee's complete report which, along with the committee's minutes, are posted on the Bar's Web site, www.flabar.org.

Comments may be sent to Bar Ethics Counsel Elizabeth Tarbert at The Florida Bar, 651 E. Jefferson St., Tallahassee 32399-2300, or e-mailed to [e-mail].