Ethics

At two different public forums sponsored by the 20/20 commission this year, certain rule changes were discussed although the commission has made no recommendations regarding either.

One was whether the rules should allow nonlawyers to have ownership interests in law firms as has long been permitted in Washington, D.C. (There are several different models for allowing this, from rather conservative versions to the all out Walmart (formerly Sears) Law Firm, but that's another matter).

The second question concerned released-for-comment proposals - 

(a) to allow foreign lawyers (defined as in existing rules, like the foreign legal consultant rule) to gain admission via a US jurisdiction's in house counsel rule for domestic lawyers (as an ABA Model Rule now envisions), which would enable them to practice in house for their employer/client in the US; and 

(b) to allow foreign lawyers to  be admitted pro hac vice in a matter at a judge's discretion and with the active participation of US counsel. Recall that one of Conrad Black's trial lawyers at his Chicago federal trial was Canadian as is Black.

A significant number but a minority of states allow foreign lawyers to enjoy each method of admission.

This is a lead up to this question: Should the absence of any problem with the operation of the D.C. rule (as its chief disciplinary counsel has attested) and the absence of any problem in the minority of states extending privileges to foreign lawyers under their pro hac vice or in house counsel rules weigh at all in determining whether to endorse such proposals? 

In other words: Should experience matter? Or is there an overriding normative reason to reject these proposals regardless of no showing of harm (let's assume credibly) in the places that have them? 

My longtime friend Larry Fox, presented with these questions at the hearings, opposed any change even if it could be shown that they caused no harm and I assume (but do not know) even if could be shown that they improved the quality of legal representation in particular circumstances.

Now, I understand normative positions, of course. 

The attorney-client privilege is defended because it respects the privacy and autonomy of clients regardless of whether it yields more justice in the long run, assuming we can ever know. 

Free speech is protected on a normative principle without need for proving some experiential value (which many assume). The same for religious freedom.

 But does the same approach work in the world of rules governing lawyers? Should experience be the main determinant of the wisdom of those rules? 

The problem with that conclusion is that sometimes it is impossible to know what the effect of a rule will be. We can guess but we cannot test our assumptions. The confidentiality exceptions in Rule 1.6 are probably in this category. Do they impede communications with counsel? Some say yes, some say no. 

But in any event, proponents of the exceptions argue that they are right in themselves. They say that lawyers "should" be able to reveal the confidences of a client who has abused the professional relationship and unwittingly used the lawyer to commit a financial fraud or crime that will injure or that has seriously inured another.

 "Should" is the marker of a normative principle. When should we rely on "should?"