Ethics Opinion Articles - NC State Bar Journal

Coming to NC Lawyers Everywhere: The New and Improved Rules of Professional Conduct

This fall the members of the North Carolina State Bar will receive a mailing that contains substantial proposed revisions to the Rules of Professional Conduct. After the comprehensive revision of the Rules undertaken in 1997, many lawyers may ask why the State Bar is again tinkering with the Rules. The following excerpt from the summary that accompanies the mailing provides the background:

In 1997, the Board of Governors of the American Bar Association (ABA) determined that the ABA Model Rules of Professional Conduct, originally adopted in 1983, should be reviewed, evaluated, and revised as necessary to respond to the changes in legal practice over the preceding 14 years and to address the need for national unity in light of the substantial variance in state ethics codes.1 The Commission on the Evaluation of the Rules of Professional Conduct was appointed and dubbed the "Ethics 2000 Commission" in the hope that its recommendations would be adopted in calendar year 2000. Although a little tardy, the commission's final report was issued in the summer of 2001. The ABA House of Delegates began consideration of the report at its 2001 annual meeting and completed the adoption of revised Model Rules on February 5, 2002, at its mid-year meeting.

E. Norman Veasey, chair of the Ethics 2000 Commission, in the introduction to the commission's preliminary report, noted that "[t]hough some might have thought it premature to reopen the Model Rules to such a thoroughgoing general reassessment after only 14 years, the evaluation process has proved that the ABA leadership in 1997 was right on target."2 Given that the North Carolina Rules of Professional Conduct were thoroughly revised in 1997 to make them consistent with the Model Rules in effect at that time, some members of the North Carolina bar might have a similar concern that the re-evaluation of the North Carolina Rules is premature. Nevertheless, the current leadership of the North Carolina State Bar concluded that the revision of the rules in 1997 would be undermined if the State Bar did not endeavor to stay current with the ABA. Moreover, the Ethics 2000 Commission and its 250-member advisory council was composed of leading national authorities on professional responsibility: the commission's recommendations could not be ignored. In this spirit, Ann Reed, then-president of the North Carolina State Bar, appointed a committee of the State Bar Council in summer 2001 to study the Report of the ABA Commission on the Evaluation of the Rules of Professional Conduct. The North Carolina State Bar committee was officially named "The Committee to Review the ABA Ethics 2000 Commission's Report" and instructed to review the commission's report and to make recommendations to the State Bar Council on whether to incorporate the commission's proposals into the North Carolina Rules of Professional Conduct.

E. Fitzgerald Parnell III, current president of the State Bar, was appointed chair of the committee. Serving with him were the following members of the council of the State Bar: Sara H. Davis, Renny W. Deese, Irvin W. Hankins III, Dudley Humphrey, Robert W. Johnson, John B. McMillan, and Betty J. Pearce. Melvin F. Wright, director of the Chief Justice's Commission on Professionalism, US Magistrate H. Brent McKnight, and Cressie H. Thigpen Jr., past-president of the State Bar, were also appointed to the committee. Alice Neece Mine was designated legal counsel to the committee.

The committee first determined that it would accept each recommendation of the ABA Ethics 2000 Commission unless there was a compelling reason not to do so. The committee's task was made easier by the commission's own "minimalist" approach as described in the following excerpt from the introduction to the executive summary of the report of the commission prepared by Margaret Colgate Love3:

At the outset, the commission determined that it should take a relatively 'minimalist' approach to its task, retaining the basic format and approach of the Model Rules, and generally clarifying and refining rather than making major changes in particular rules. Its presumptive operating principle was to make no change unless substantively necessary—although as time went along, it found more and more that fell into this category. In the end the commission decided to propose a number of significant substantive changes to the existing rules, as well as several entirely new rules. It has also proposed numerous editorial and stylistic changes in the interest of clarification, and amplification to commentary to provide additional guidance interpreting and applying the rules.

Much of the committee's work involved minor refinements to the rules and the commentary to the rules to make them consistent with the recommendations of the ABA Ethics 2000 Commission. These refinements range from simple corrections of grammatical errors to the clarification, expansion, and re-organization of rules and commentary. Despite the number of recommended changes, for the most part, the substantive provisions of the rules are unchanged. For example, the committee recommends the adoption of the definition of "confidential information" in ABA Model Rule 1.6, to wit: "information acquired during the professional relationship." This definition is simple to understand but broad enough to encompass the prior definition in existing North Carolina Rule 1.6(a) ("information protected by the attorney-client privilege…and other information gained in the professional relationship…."). A similar change in form but not substance is found in the proposal to delete Rule 2.2 on the lawyer's role as an intermediary in favor of additional commentary in Rule 1.7 that addresses representation of multiple clients in a common matter. The committee is, nevertheless, recommending a number of revisions that will change a lawyer's professional responsibilities in certain situations.

The Status of the Committee's Proposals

The committee presented its recommendations to the council of the State Bar at a meeting in Asheville on July 17, 2002. Although the council made a few changes, for the most part, the council applauded the committee's recommendations. Particularly with regard to the expanded guidance provided in the commentary, it is believed that these revisions will indeed make the rules "new and improved."

The council approved the publication of the proposed revisions to the rules for the purpose of obtaining the comment and feedback of the members of the bar. Please read the mailing of the proposed revised rules carefully and send your comments to the State Bar care of Alice Mine.

Endnotes

1. ABA Ethics 2000 Commission Final Report, Summary of Recommendations by Margaret Colgate Love, June 9, 2001, page 1.

2. ABA Report of the Commission on the Evaluation of the Rules of Professional Conduct, November 2000, Chair's Introduction and Executive Summary, page xi.

3. Supra note 1.

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