Jack L. Sammons
Griffin B. Bell Professor of law
Mercer University
Introduction
This is not a comprehensive outline of all the changes from our current ethical regulations to the new ones. What follows are, however, the changes that I believe the average lawyer is most likely to need to know for his or her practice. In most cases, if a revision to a regulation does not appear to significantly change the existing analysis, I have ignored the revision.
I.
Regulations Moved from Guidance-Only
Under the Georgia Code of Professional
Responsibility to Discipline Under the
Georgia Rules of Professional Conduct
All of the following were within Directory Rules of the Georgia Code of Professional Responsibility but were not in the Georgia Standards of Conduct. Prior to the Rules of Professional Conduct they were, therefore, offered in Georgia for guidance only and could not be the basis for discipline. Under RPC's they are disciplinary.
A. Inadequate preparation for a representation. See RPC 1.1.
B. Limiting liability for malpractice. See RPC 1.8(h). (Modified from C.P.R.)
C. Filing meritless claims, or claims, including claims for delay, with the sole purpose of harassment or malicious injury to others. See R.P.C.3.1
D. Rectifying client or third party fraud against a person of tribunal committed during a representation. See RPC 3.3, RPC 4.1, and RPC 1.6. (Modified from CPR).
E. Disclosing adverse controlling legal authority. See RPC 3.3.
F. Serving as a lawyer and as a witness in a representation. See RPC 3.7 (modified from CPR).
G. Prosecutors filing charges unsupported by probable cause. See RPC 3.8.
H. Circumventing a disciplinary rule through the actions of another. See RPC 8.4.
II.
Modifications of Standards of Conduct in the
Rules of Professional Conduct
All of the following were contained in the Georgia Standards of Conduct but have been modified in the Georgia Rules of Professional Conduct. Where possible, the RPC modifications are characterized in the parenthetical remarks.
A. Competence. RPC 1.1. (Expands to include legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation).
B. Diligence. RPC 1.3 (Probably no change from existing regulation and analysis).
C. Fee splitting. RPC 1.5 (e). (More permissive provision).
D. Confidentiality. RPC 1.6 (Broadened coverage; liberalized disclosure in comparison with ABA Model Rules.)
E. Conflicts of interest. RPC 1.7 (Modification of regulations governing personal interest conflicts and simultaneous representation conflicts only. Extent of change from existing regulations and analysis not clear.)
F. Business transactions with clients. RPC 1.8(a). (New procedural and fairness requirements).
G. Advancing court costs and expenses of litigation. RPC 1.8(e). (Permitted on contingency).
H. Paying court costs and expenses of litigation for indigent clients. RPC 1.8(e) (Permitted).
I. Terminating representations. RPC 1.16. (More permissive).
J. Serving as an intermediary. RPC 2.2 (Clarification on when withdrawal from representing all clients with potentially conflicting interests required).
K. Different rules for different roles: intermediary, ex parte hearings, opinion or evaluation letters.
L. Candor to the court. RPC 3.3 (Prevention of client or witness intended perjury and remedial action for discovered perjury required.)
M. Trial publicity. RPC 3.6 ("Substantial likelihood of material prejudice" standard. Check ABA Model Rules safe harbor provisions in addition and Gentile v. Nebraska.)
N. Operation of obligation to disclose information to avoid assisting in a crime or fraud by the client under RPC 4.1 and the Committee revision of Model Rule 1.6 in the adoption of RPC 1.6 (Making some permissive disclosures under RPC 1.6 mandatory.)
O. Application of non-contact rule to state and federal government lawyers. RPC 4.2. (Reno Memorandum issue)
III.
Adoption of New Disciplinary Regulations in the
Rules of Professional Conduct
All of the following are new disciplinary regulations under the Georgia Rules of Professional Conduct. Prior to the RPC they were not found in the Georgia Standards of Conduct nor in the Directory Rules of the Georgia Code of Professional Responsibility. Several were, however, within the subject matter of Ethical Considerations under the Georgia CPR.
A. Obligation to communicate with clients. RPC 1.4
B. Obligation to communicate fees early. RPC 1.5(b)
C. Prohibition on preparing instruments giving gifts, including testamentary gifts, to the lawyer or the lawyer's relative. RPC 1.8(e)
D. Consent requirement for opposing a lawyer relative in representation. RPC 1.8(i)
E. Various responsibilities when the organization is the client, especially going up the chain of command, disclosure of role, and potential for conflict in representation of officers or others individually. RPC 1.13
F. Representation of disabled or incompetent clients. RPC 1.14
G. Obligation to expedite litigation. RPC 3.2
H. Prohibition on advising non-clients against giving voluntary information. RPC 3.4
I. Prosecutorial ethical obligations:
1. Requirement to disclose evidence or information to defense. RPC 3.8(d)
2. Requirement to restrain others from certain extrajudicial statements. RPC 3.8(f)
3. Limitation on use of subpoenas against lawyers. RPC 3.8(f)
4. Requirement to avoid statements that would heighten public condemnation of the accused. RPC 3.8(g)
J. Thirty day restriction on contacting potentially adverse injured party or relative of injured party. RPC 4.3(c)
IV.
Missing Regulations
Since most of the RPC's are based on the ABA Model Rules there are certain ethical regulations those of you familiar with the Model Rules would expect to find in the RPC's that you will not find because they were excluded in the adoption of the RPC's. These excluded regulations cannot be the basis for discipline in Georgia. If you practice in federal court, including bankruptcy, however, these excluded regulations may be in force. This depends upon which version of ethical regulations was adopted by your federal district in its local rule.
Under the ABA Model Rules:
A. A lawyer is permitted to retain client papers upon termination to the extent permitted by law.
B. A condition precedent to selling a law firm is that the seller cease to practice law either in the jurisdiction or the geographical areas depending upon state preferences.
C. A lawyer is encouraged to refer to moral, economic, social and political factors involved in counseling a client.
D. There are several procedural requirements (required disclosures, consultations, etc.) as prerequisites to entering an intermediation.
E. There is a reference to frivolousness in the prohibition on meritless claims and an exception permitting a lawyer for a criminal defendant to raise the defenses necessary to require proof of each element by the prosecution.
F. There is a safe harbor provision concerning trial publicity.
G. A prosecutor is not permitted to obtain a waiver of pre-trial rights from an unrepresented accused.
H. A prosecutor is required to reveal certain evidence in mitigation in sentencing.
I. Certain untruthful comments or comments made with reckless disregard of the truth concerning judicial officers are prohibited.
J. Reporting violations of the MR's or the Code of Judicial Conduct (CJC) is mandatory. (Changed to permissive under the Georgia RPC's)
K. Lawyers are prohibited from assisting a judge in a violation of the CJC or other law.
L. Conduct prejudicial to the administration of justice is prohibited.
All of these were removed from the RPC's. Also,
M. Most of the MR's ethical regulations concerning trial or discovery conduct have been removed from the RPC's. These include: the prohibitions on knowingly disobeying an obligation under the rules of a tribunal except for a public refusal challenging the rules; filing frivolous discovery requests or not being reasonably diligent in complying with discovery requests; surreptitiously introducing inadmissable evidence such as, e.g., referring to evidence that you know will be found irrelevant; stating your personal knowledge of facts or offering a personal opinion on various matters such as, e.g., the credibility of a witness, as an advocate; and so forth.
Again, none of the above can be the basis for discipline in Georgia unless you are practicing in a federal district that has adopted them by adopting the ABA Model Rules under its local rules.