The first draft of an American Bar Association commission proposal for new rules for professional conduct is being circulated privately to top lawyers, academics, prominent legal writers and ABA leaders, commission chairman Robert J. Kutak said today.
The nation's lawyers and the public, however, will have to wait until early next year to see the proposals to overhaul the ABA's code of ethics for the practice of law, Kutak said.
A special "showcase program" on legal ethics was held today as part of the ABA's annual meeting here. Participants who were given advance copies of the tentative proposal had been instructed by Kutak to avoid direct references to either the text or its language.
Kutak's effort to keep the contents quiet was upset however, when Hoistra University law professor Monroe H. Freedman directly attacked the draft which he described as "a failure."
Freedman specifically pointed to a portion of the draft that concerns lawyer-client confidentiality. The tentative draft would require the lawyer to disclose any information from a client that would change the course of a lawsuit or any knowledge that the client intended to commit an illegal act. The proposal would require the lawyer to inform a client of that obligation before any consultation began, a rule Freedman said would chill lawyer-client relationships.
"He's jumping on the draft when it's not ready," Kutak said later.
Former ABA president and commission member William B. Spann Jr. told lawyers at the program yesterday that the review of ethical rules focused on several major issues. They included:
The extent of the lawyer-client relationship and the limits of confidentiality. The question is, Spann said, "Is the lawyer obliged to blow the whistle on his client?"
The so-called "revolving door" issue when lawyers move back and forth from private practice and government service and the potential conflicts of interest.
The ethical obligations of the lawyer acting as negotiator and adviser as well as advocate.
Redefining the nature of legal advertising.
The lawyers' "pro bono" obligations to represent needy clients free.
Kutak emphasized yesterday that the "working draft" now in circulation "is not the position proposed, much less adopted, by the commission." He said the 13-member commission, which includes two nonlawyers, had not yet taken a vote on the draft proposals.
At a press briefing earlier today, Yale Law School Professor Geoffrey C. Hazard Jr., a drafter of the tentative proposal, predicted there would be "a lot of change" in the working paper as it is reviewed privately during the next several months.
"To put it mildly," Hazard told reporters, some of the issues will be "very controversial." He mentioned for example, the question of whether a lawyer should be ethically bound to report to authorities possibly improper action by a member of his own law firm.
In response to repeated questions from reporters, Hazard said there were problems with general circulation of a tentative draft that amounted to a "wall-to-wall revision of the code, which the commission is considering." Hazard added that some members of the Commission for Evaluation of Professional Standards have not seen parts of the draft proposal.
Kutak told reporters that the proposed draft would be "laid down" at the ABA's meeting next year and then is scheduled for debate before the policymaking House of Delegates in February 1981. If the House approved the changes, the new code of ethics would be sent to the states and the District of Columbia, which would then have the option of adopting the new rules.
Most state disciplinary codes for lawyers are modeled after existing ABA rules, which were adopted by the House of Delegates 10 years ago.