ABA Adopts Final Proposals from Ethics 20/20

This afternoon, the ABA House of Delegates approved four remaining proposals from the ABA Commission on Ethics 20/20.  Here is a brief description of what each proposal accomplished:

Resolution 107A amended Model Rule 5.5 so that it expressly permits qualified foreign lawyers to serve as in-house counsel while based at their employers’ U.S. offices. (The accompanying report is here.)

Resolution 107B amended the 2008 ABA Model Rule for Registration of In-House Counsel to bring foreign lawyers within the scope of that Rule.  (The accompanying report is here.)

Resolution 107C amended the ABA Model Rule on Pro Hac Vice Admission so that it provides guidance to judges who may be asked to grant pro hac vice admission to qualified foreign lawyers.  (The accompanying report is here.)

Resolution 107D amended Comment [5] to Rule 8.5 of the Model Rules of Professional Conduct so that it expressly allows a lawyer and client to specify a particular jurisdiction as the jurisdiction where the “predominant effect” of the lawyer’s conduct will occur for purposes of a choice of law analysis under Model Rule 8.5. (The accompanying report is here.)

An overview report describing each of these Resolutions is here. 

The above links are to unofficial versions of the resolutions and reports; the official versions should be posted on the ABA’s website within a few days.  Also, for those of you who are unfamiliar with ABA legislative drafting, the red and blue colored markups in Resolution 107A-C above reflect additional revisions that were made after the Resolutions were formally filed with the House of Delegates a couple of months ago.  [I have updated the links so that they are now to the official versions.]

The Ethics 20/20 Commission has now completed its work. (See photo below for evidence.)

As I mentioned in August, shortly after the House of Delegates adopted an even wider range of changes proposed by the Commission, I have had the privilege of serving as the Commission’s Chief Reporter and would be happy to answer any questions about the Commission’s work.  You can email me here.  You also should feel free to contact Ellyn Rosen at the ABA Center for Professional Responsibility.  Ellyn is an amazingly dedicated and knowledgeable lawyer who has served as the Commission's lead counsel and advised the Commission on countless issues.  She helped to prepare many Commission documents and is another good source of information about the Commission’s work.  She can be reached at ellyn.rosen@americanbar.org.

Comments

[John Steele]

Congrats to the whole team and to the HoD for passing these good revisions.

[Roy Simon]

Congratulations to Andy Perlman and Stephen Gillers and the rest of the 20/20 clan for finishing an important, thoughtful, and comprehensive review of the regulation of lawyers, and successfully shepherding many sound proposals through the House of Delegates. I hope the Ethics 20/20 Commission will not fade away but will continue to monitor developments on an ongoing basis, making changes incrementally from time to time and coordinating with the ABA Standing Committee on Ethics and Professional Responsibility to refine the sources of guidance available to lawyers.

[Andrew Perlman]

Roy,

Thanks for the kind note. The Ethics 20/20 Commission is now official "out of business," so any continued monitoring will have to come from another entity within the ABA. You're right, though, that there are still plenty of issues that will need to be addressed in the years to come. The last line of our overarching report captured the point nicely:

"It is important to note that the proposals set forth in these Resolutions reflect the state of the profession during a snapshot in time and that the Commission has not addressed all possible ethics-related issues relating to globalization and technology that are likely to arise. The Commission exercised judgment as to the issues that deserved the most urgent attention. We hope that we have used the clear “20/20” vision that was our mandate, but fully expect and encourage the ABA to continue studying these and related issues in the future."