Ethics Counsel on www.OKbar.org

ORPC Review Nears Completion

By Gina Hendryx, OBA Ethics Counsel

The OBA Board of Governors is nearing completion of its review of recommended changes to the Oklahoma Rules of Professional Conduct. This project was prompted by extensive updates to the ABA’s Model Rules of Professional Conduct. Since the current Oklahoma rules are based substantially on the ABA Model Rules, it was appropriate for there to be an examination of the latest changes in the Model Rules with an eye toward recommending which, if any, of the ABA’s amendments should be presented to the Oklahoma Supreme Court for consideration.

The Ethics 2000 Subcommittee of the Rules of Professional Conduct Committee began work in April 2003 first considering rules with changes not considered as “substantive.” Then the subcommittee moved on to rule revisions that contained significant and substantial changes from the current version of the Oklahoma Rules of Professional Conduct. Using the Model Rule as a guidepost, the committee extensively reviewed and debated all suggested changes to the corresponding current Oklahoma rule. The subcommittee was comprised of attorneys from all sectors including large and small firms, government, academic and judiciary.

Changes made by the committee reflected the ABA’s emphasis to clarify and strengthen the lawyer’s duty to communicate with the client and responded to the changing organization and structure of a modern law practice. The new rules account for issues and questions raised by the influence that technological advances are having on the delivery of legal services.

The committee’s work product is being considered by the Board of Governors at its regularly scheduled monthly meetings with recommended changes being presented to the House of Delegates at the Annual Meeting in November 2006. The completed package will then be presented to the Oklahoma Supreme Court for review and adoption or rejection.

The Board of Governors is interested in hearing comments and opinions from OBA members on the changes. Two public hearings have been held with a third scheduled for Aug.15 at the Oklahoma Bar Center beginning at 3 p.m. Members are encouraged to attend the public hearing or submit written commentary to the offices of the Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, 73152 or by e-mail to ginah@okbar.org. Your comments will be forwarded to the Board of Governors for consideration.

The following is a summary of a few of the proposed changes:

Current Rule 1.7, 1.8, 1.9: These three rules discuss conflicts of interest and when a client may “consent” to the conflict. The current rules require consent after consultation.

Proposed Rule: The committee adopted the ABA recommendations that “informed consent” replace “consents after consultation” and that the consent must be “in writing.”

Current Rule 1.6: A lawyer may reveal client confidences to disclose the intent of a client to commit a crime, to rectify the consequences of a client’s criminal or fraudulent act, or to establish a claim or defense on behalf of the lawyer in a dispute with the client.

Proposed Rule 1.6: A lawyer may reveal information to prevent reasonably certain death or substantial bodily harm, information to prevent the client from committing a crime, and information to prevent the client from committing a fraud that is reasonably certain to result in substantial financial injury and in furtherance of which the client has used the lawyer’s services.

Current Rule 1.8(j): There is no current language in the Oklahoma rule regarding sexual relationships between lawyer and client.

Proposed Rule 1.8(j): This section prohibits lawyer and client sexual relationships unless a consensual sexual relationship existed prior to the time the lawyer-client relationship commenced and the relationship does not result in a violation of Rule 1.7(a)(2).

Current Rule 1.14: When a lawyer believes her client is under a disability, she may seek the appointment of a guardian.

Proposed Rule 1.14: The new language replaces “under a disability” with “diminished capacity” and adds options regarding protective measures that may be taken short of requesting a guardian.

Current Rule 1.15: Requires attorney to hold property of a client separate from the lawyer’s own property.

Proposed Rule 1.15: Clarifies that legal fees and expenses that have been paid in advance are to be deposited into the client trust account and withdrawn only as earned or incurred. Lawyers may also deposit the lawyer’s own funds into the client trust account for the sole purpose of paying bank service charges. There is also under consideration a proposal that the OBA general counsel be notified when an OBA member has an overdraft on her client trust account. This addition will be discussed at the Aug. 18 Board of Governors meeting.

Current Rule 1.17: A lawyer (or authorized representative) who ceases to engage in the private practice of law in Oklahoma may sell the practice.

Proposed Rule 1.17: A lawyer may now sell an “area of practice” and not be required to cease all private practice in Oklahoma. The lawyer may also sell to one or more lawyers or law firms.

Current Rule 3.3: A lawyer shall not knowingly make a false statement to a tribunal.

Proposed Rule 3.3: Changes now require a lawyer to correct a false statement of material fact or law previously made to the tribunal by the lawyer.

Current Rule 4.4: The current rule is silent to inadvertently sent documents.

Proposed Rule 4.4: The recipient of an inadvertently sent document shall promptly notify the sender.

Current Rules 7.2 and 7.3: These are advertising rules that were written prior to Web sites, e-mails and electronic advertising.

Proposed Rules 7.2 and 7.3: References were added to “electronic communications” including “real time electronic contact.” There is no longer a requirement that copies of advertising or communications be kept for three years.

A complete set of the proposed changes may be found at www.okbar.org/members/EthicsCounsel/RulesProfessionalConduct.aspx.

Originally published in the Oklahoma Bar Journal -- Aug.5, 2006 -- Vol. 77; No.21