On Monday, February 16th, the ABA will webcast its deliberations concerning the proposed amendment to Model Rule 1.10. The link to the webcast is here.
The ABA's Center for Professional Responsibility has posted numerous resources related to the proposal. You can also find some commentary in favor of screening in David McGowan's post and arguments against it in Monroe Freedman's post. Our survey of this blog's readers suggests considerable support for some version of screening.
The issue is difficult, in part, because it is hard to know just how dangerous a screening provision is. The back and forth between David and Monroe on this point cuts to the heart of the issue. If lawyers will breach the screen with any kind of frequency (as Monroe thinks likely), the screening provision is a bad idea. If a breach of the screen will occur in very few cases, the benefits of screening probably outweigh the costs.
The proponents of screening assume (indeed, have to assume) that breaches will occur in relatively few cases. For example, Norman Veasey makes this point on page 5 of his comments in support of the change, stating that there is no reason to "cynically assume that lawyers will be tempted to violate their oaths." Unfortunately, I am somewhat cynical, especially when the risk of detection is very low. The problem of padding hours is one such example. Another example can be found in the dissenting opinion of Balla v. Gambro. In the context of whether lawyers should be allowed to bring a retaliatory discharge claim, Justice Freeman expressed his own cynicism about lawyers' ability to comply with their ethical obligations:
[T]o say that the categorical nature of ethical obligations is sufficient to ensure that the ethical obligations will be satisfied simply ignores reality. Specifically, it ignores that, as unfortunate for society as it may be, attorneys are no less human than nonattorneys and, thus, no less given to the temptation to either ignore or rationalize away their ethical obligations when complying therewith may render them unable to feed and support their families.
I would like to believe, as my colleagues apparently conclude, that attorneys will always “do the right thing” because the law says that they must. However, my knowledge of human nature, which is not much greater than the average layman’s, and, sadly, the recent scandals involving the bench and bar of Illinois are more than sufficient to dispel such a belief. Just as the ethical obligations of the lawyers and judges involved in those scandals were inadequate to ensure that they would not break the law, I am afraid that the lawyer’s ethical obligation to “blow the whistle” is likewise an inadequate safeguard for the public policy of protecting lives and property of Illinois citizens.
As reluctant as I am to concede it, the fact is that this court must take whatever steps it can, within the bounds of the law, to give lawyers incentives to abide by their ethical obligations, beyond the satisfaction inherent in their doing so. We cannot continue to delude ourselves and the people of the State of Illinois that attorneys’ ethical duties, alone, are always sufficient to guarantee that lawyers will “do the right thing.”
Much of this reasoning seems applicable to the Rule 1.10 debate. That said, I nevertheless find myself agnostic about the proposal. I think there is a greater risk from screening than proponents seem to be acknowledging. But at the same time, I'm not convinced that the risks are so large that the costs outweigh the benefits. To me, this is an empirical debate, and I don't have enough evidence to reach a conclusion either way.