Ethics

In a thoughtful and interesting new article recently posted on SSRN, Denver University Law Professor Eli Wald critiques the current regime of legal ethics rules (primarily ABA Model Rule 1.4) that governs communications between attorneys and their clients.  Wald contends that the current regime leads to an information asymmetry - attorneys receive adequate information from their clients, however, the converse is not true.  In offering his critique, Wald establishes a three-part typology of the kinds of information that might be exchanged between attorney and client during the course of representation: 1) "representation specific" facts (those relating direclty to the current representation); 2) "meta" facts (background information relating to the attorney and client); and 3) "set-up" facts (information relating to the structure of the attorney-client relationship, eg, the terms of the fee arrangement, etc.).  While the current rules require lawyers to provide representation specific facts to their clients, they largely fail to compel lawyers to provide facts that fall in the other two categories to clients.  Because Wald believes that clients would benefit from receiving more "meta" and "set-up" facts from their lawyers, he proposes changes to Model Rule 1.4 that he contends would promote that result.

One of the reasons, independent of the content of the current rules, Wald offfers for why lawyers fail to provide adequate meta and set up information to their clients is simple efficiency - lawyers often have lots of clients and it would take a lot of time and therefore cost a lot of money for lawyers to provide such information.  In a long ago article (70 Fordham L. Rev. 645 (2001)), I suggested that the legal profession look to a then increasing trend within the medical profession to require physicians to provide publicly available "profiles" that contain they type of meta facts Wald refers to so as to enable prospectives patients to make more informed judgments in selecting a physician.  Such profiles contain information relating to physicians' education, training and experience, their malpratice insurance coverage, and their disciplinary and sometimes malpratice claims records.   

The legal profession has taken some steps to make such information publicly available since I wrote the article, without considering the full-blown profile idea seriously.  For example, the Bar here in California recently approved a requirement that lawyers disclose to clients whether they carry malpractice insurance (Cal. Bar Journal article here), and the Bar has also decided to make information regarding pending disciplinary proceedings available online (law.com article here).  Yet full blown profiles would solve at least the efficiency problem identified by Wald more effectively than a rule requiring individual communications with clients, or the dispersed information sources provided by state Bars like California.  Of course, profiles would be unlikely to include the type of set up facts Wald identifies, and the rules reforms he suggests make a lot of sense to me with regard to that type of information.