Ethics

The new batch of proposed CA rules includes a revised rule 1.13.   Three Two quick comments.

1.  The rule departs from the MR by incorporating the current 3-100/6068(e) limits on the ability of counsel to disclose client information.  That is regrettable for reasons that have been debated enough to justify omitting them here.

2.  Rule 1.13(f) should be broadened slightly, by adding something like the underscored language:

"In dealing with an organization?s directors, officers, employees, members, shareholders, or other constituents, a lawyer representing an organization shall explain the identity of the lawyer?s client whenever the lawyer knows or reasonably should know (i) that the organization?s interests are adverse or potentially adverse to those of the constituent(s) with whom the lawyer is dealing . . . . "

I would add to the current comment a sentence elaborating that an interest is potentially adverse in the same sense that a lawyer may face a potential conflict: the alignment of parties and interests provides a reason to foresee that a conflict might arise, even though it has not yet arisen. 

Comment 15 to the draft is consistent with this change--it says "There are times when the lawyer knows or reasonably should know that the organization?s interest may be or become adverse . . . "  The text of the rule does not reflect the implications of that language for potential conflicts, however, and I think that point is important enough to be in the text of the rule.

I have one more point, about proposed rule 1.13(f), but it is a bit complex so I leave it for a separate post.

DM