Ethics Counsel on www.OKbar.org

Changes at a Glance (Part 2)

By Gina Hendryx, OBA Ethics Counsel

In the August edition of the Oklahoma Bar Journal, several of the modifications to the Oklahoma Rules of Professional Conduct were highlighted. Beginning Jan.1, 2008, amendments to the Oklahoma Rules of Professional Conduct as approved by the Oklahoma Supreme Court will become effective. These changes were prompted by extensive updates to the American Bar Association’s Model Rules of Professional Conduct. The current Oklahoma rules are based substantially on the ABA Model Rules and the adopted amendments reflect these updates as well as current Oklahoma modifications.

The following is a summary of additional rule changes that may impact your practice of law.

Rule 1.15 Safekeeping Property

Rule 1.15 now allows for depositing a lawyer’s own funds into the client trust account for paying bank service charges. Furthermore, the amended rule specifies that ALL advance payments for fees or expenses will be placed into the trust account and may only be withdrawn as fees are earned or costs incurred. Lawyers will also be instructed to provide mandatory overdraft notification authorization to their financial institutions. The financial institution will be instructed to notify the General Counsel of the Oklahoma Bar Association if any properly payable instrument is presented against a client trust account containing insufficient funds. No trust account shall be maintained in a financial institution which does not agree to make such reports.

Rule 1.17 Sale of a Law Practice

A lawyer may sell an “area of practice” if the seller ceases to engage in the private practice of law, or in the area of practice that has been sold in the geographic area of Oklahoma in which the practice has been conducted. The sale may be to one or more lawyers or law firms. The client has the right to take possession of the file and retain other counsel.

Rule 1.18 Duties To Prospective Clients

Rule 1.18 is entirely new and is informative on grappling with the potential client that seeks out the lawyer for advice but doesn’t hire the lawyer for representation. The conflict then arises when the adverse party of the matter seeks to employ the lawyer. This rule states that such a person seeking advice is a “prospective client.” The lawyer cannot use or reveal information learned in the consultation and shall not represent a client with interests materially adverse to those of the prospective client in the same or a substantially related matter. Representation may be permissible if both affected persons give informed consent, confirmed in writing.

Rule 2.4 Lawyer Serving As Third Party Neutral

Rule 2.4 is also a new rule for Oklahoma. It defines “third party neutral” and places responsibility for disclosure to unrepresented parties upon the lawyer serving as a mediator or arbitrator.

Rule 3.3 Candor To The Tribunal

Rule 3.3 (a)(1) will require a lawyer to correct a false statement of material fact or law if the lawyer knowingly makes the statement. Section (b) will require a lawyer to take reasonable remedial measures, including disclosure to the tribunal, if the lawyer knows that a person has engaged in criminal or fraudulent conduct relating to the proceeding.

Rule 4.4 Respect For The Rights Of Third Persons

Change will only require that the recipient of an inadvertently sent document promptly notify the sender. Whether the recipient should return the documents is beyond the scope of the rules. This change will also apply to electronic transmissions such as e-mail.

Rule 5.4 Professional Independence Of A Lawyer

Lawyer may purchase the practice of a deceased, disabled or disappeared lawyer. Pursuant to the provisions of Rule 1.7, the lawyer may pay to the estate or other representative of that lawyer the agreed-upon purchase price.

Rule 5.5 Unauthorized Practice of Law; Multi Jurisdictional Practice Of Law

There will be significant changes to this rule effective the first of the year. The new language details when a lawyer, not licensed in Oklahoma, may provide legal services in this state. These include representations taken in association with an Oklahoma attorney; matters in which the out of state attorney is admitted pro hac vice, matters related to an arbitration or mediation if these arise out of the lawyer’s practice in the jurisdiction in which the lawyer is licensed; services provided to the lawyer’s employer in connection with the employer’s business so long as the lawyer does not provide legal services to third parties and does not require admission pro hac vice; or are authorized by federal law.

Summaries of the rule changes as they affect advertising will be summarized in the December issue of the Oklahoma Bar Journal. The full text of these and all the amendments can be found here.

Originally published in the Oklahoma Bar Journal -- Oct.6, 2007 -- Vol. 78; No.27.