AMERICAN BAR ASSOCIATION
CENTER FOR PROFESSIONAL RESPONSIBILITY
HIGHLIGHT OF ACTIVITIES REPORT
SEPTEMBER –OCTOBER 2009
PROGRAMS AND EVENTS - The Center’s Director, Ethics Counsel, and Associate Regulation
Counsel met with a delegation of Russian bar leaders as part of the ABA Rule of Law Initiative's
program entitled "Legal Ethics and Responsibilities in the United States."
The Center co-sponsored the Joseph G. Miller and William C. Becker Institute for Professional
Responsibility’s inaugural symposium, “Lawyers without Borders and Practicing Law in the
Electronic Age” at the University of Akron School of Law. (read related Conference Report from
the ABA/BNA Lawyers’ Manual on Professional Conduct.).
Associate Professionalism Counsel presented a session on “The Rule of Law” at the
Constitutional Rights Foundation Chicago 2009 Illinois Law-Related Education Conference at
Ethics Counsel participated in numerous programs and events including:
Presenting a paper to the University of Illinois at Chicago's School of Business at the
invitation of the Integritas Institute, which coordinates ethics curriculum in UIC's medical
and business schools, and served as a program panelist.
Participating in panel discussions on legal ethics issues for paralegals during the annual
meeting of the National Federation of Paralegal Associations, Inc (NFPA). He joined the
group's policy-making body at planning sessions focusing attention on updates to the
ethics portions of NFPA's certification exam, on which he first collaborated in 1996, and
the development of a new "basic competency" exam and also chaired the panel of judges
for the Thomson-Reuters Annual Scholarships that were presented during the meeting.
Participating in the ethics panel segment of the annual program presented by APBCo, the
Association of Pro Bono Counsel. The association's membership consists of full-time pro
bono legal counsel from the largest firms in the nation.
Serving as a commentator at Hofstra University School of Law biennial ethics conference
“Power, Politics, and Public Service: The Legal Ethics of Lawyers in Government” The
conference focused on the professional responsibility obligations of prosecutors, and
included numerous panels featuring prominent prosecutors and other government
officials. Among those presenting remarks was Robert Mundheim, Chair of the ABA
Standing Committee on Ethics and Professional Responsibility, formerly general counsel
of the U.S. Department of Treasury.
ARTICLES AND PUBLICATIONS - Recent Ethics Opinion and Joint responsibility: Sharing legal
fees between lawyers not in the same firm, by ETHICSearch Director Peter Geraghty appeared in
the September and October issues of Your ABA.
Two Faces of Criminal Prosecution: Harvey Dent, Mike Nifong, and Craig Watkins by Associate
Professionalism Counsel Dennis Rendleman appeared in the Journal of the Institute of the
Institute of Justice and International Studies. (2009, Number 9)
The ABA/BNA Lawyers’ Manual on Professional Conduct published conference reports on the
Fall 2009 ABA National Legal Malpractice Conference and the Miller-Becker Institute for
Professional Responsibility Symposium at the University of Akron School of Law. Also published
were numerous noteworthy recent opinions and decisions including the Ninth Circuit’s reversal of
a California district court’s suppression in a criminal prosecution of statements that a Broadcom
executive made to lawyers in the course of the company’s investigation of stock-option
backdating practices, the U.S. House’s unanimous passage of a bill exempting small law firms
and other small businesses from the requirements of the FTC’s new “red flag” rules, among
others, the second of a two-part Analysis & Perspective on multijurisdictional practice issues; a
survey of cases of interest on the docket for the Supreme Court’s October Term; and decisions of
the Ohio Supreme Court and New Jersey Supreme Court’s ethics and unauthorized practice
committees finding the actions of certain mortgage restructuring businesses to be the
unauthorized practice of law, among others.
The ABA Rule of Law Initiative (ROLI) arranged for a Russian translation of the ABA Model Rules
of Professional Conduct, a Spanish translation of the Model Code of Judicial Conduct and a
Russian translation of the ABA Model Rules for Lawyer Disciplinary Enforcement. These, and
other international resources have been linked to a new Global Resources page on the Center’s
The September issue of CenterPiece e-newsletter for Center members was distributed.
The Center published the 2009 Journal of The Professional Lawyer and the 2010 Compendium of
Professional Responsibility Rules and Standards.
COMMISSION ON ETHICS 20/20 -. The ABA Commission on Ethics 20/20 held its first
organizational meeting, led by Co-Chairs Jamie S. Gorelick and Michael Traynor.
The Commission began to identify critical issues and worked on a communications plan that will
foster education within the profession and for the public, engage relevant segments of the bar
and the public in framing and discussing issues, strengthen the ability of the legal profession to
meet the challenges facing it, and maintain the critical principles that govern the Commission’s
A memo was sent to ABA Section, Division, Forum, Standing and Special Committee,
Commission, and Task Force Chairs and Staff inviting their participation and encouraging their
members to sign up for the Commission’s discussion list serve to receive updates on issues,
submit recommendations for consideration, learn about meetings, public hearings, and
educational programs, and receive draft proposals for comment.
A working group on inbound foreign lawyer issues was created to develop draft policy
recommendations regarding pro hac vice admission by foreign lawyers and authorizing foreign in-
house counsel to register and work in the U.S. for their employers. The working group will also
consider whether the Model Rule for Temporary Practice by Foreign Lawyers should be merged
into the temporary practice provisions of ABA Model Rule of Professional Conduct 5.5.
Commission member Jeffrey Golden and Commission Counsel attended the Section of
International Law Council Meeting to discuss how the Section can assist with gathering
information regarding issues of concern to U.S. lawyers and law firms practicing abroad.
CLIENT PROTECTION - Client Protection Counsel and Associate Client Protection
Counsel participated in the National Client Protection Organization Workshop in Portland, OR.
Topics included "ponzi" schemes and investments; safeguarding the Fund in challenging times;
title company and mortgage fraud; cross-border practice issues; and lawyering in difficult times
and Fund philosophies. An update of activities of the Center and its committees was provided to
The Standing Committee on Client Protection is working on proposed changes to the ABA Model
Rule on Financial Recordkeeping for consideration by the ABA House of Delegates at the 2010
ABA Midyear Meeting. The recommended amendments focus on changes in electronic banking
that have occurred since the Model Rule was first adopted by the House in 1993. The draft will be
circulated among banking professionals in North Dakota and Colorado, the Banking Committee of
the ABA Section on Business Law, and interested ABA entities for comment.
The Standing Committee sent a letter to the New Mexico Public Regulation Commission
encouraging the adoption of the payee notification in New Mexico. The committee prepared and
circulated to all ABA entities and other interested parties for comment a draft Report with
Recommendations amending the Model Rule on Financial Recordkeeping that will be filed for
consideration by the ABA House of Delegates at the 2010 ABA Midyear Meeting.
Questionnaires have been developed for the 2010 Salary Survey for Administrators of Lawyers’
Funds for Client Protection, last conducted in 2002. The results will be published by May 2010.
ETHICS - The Standing Committee on Ethics and Professional Responsibility issued ABA
Formal Ethics Opinion 09-455 "Disclosure of Conflicts Information When Lawyers Move Between
The Judges Advisory Committee met to discuss the Standing Committee on Judicial
Independence’s Judicial Disqualification Project Proposed Resolution and Report. The Report
identifies problem areas regarding judicial disqualification practices, including the impact of
campaign contributions and resolution of recusal motions, and proposes possible solutions. The
Advisory Committee will complete an analysis for discussion by the Ethics Committee at its
Ethics Counsel prepared an analysis regarding ABA responses to federal initiatives that implicate
confidentiality, the attorney-client privilege and professional independence at the request of ABA
President Carolyn Lamm.
ETHICSearch lawyers responded inquiries on a variety of topics including lawyer referral fees;
the duty to report attorney misconduct; the background behind the creation of ABA Model Rule
1.14 with respect to clients with diminished capacity; the notion of "Accommodation Clients';
issues arising from a lawyer appearing before a judge to whom he made a campaign contribution;
a lawyer's duty to report inconsistencies in a witness' statement made out of court and off the
record; advertising implications of a lawyer being a partner in two firms; among many others.
ABAEsq posted a “tweet” about the ETHICSearch service with a link to online information and
resources. An online survey was developed to solicit feedback and collect demographic
information from users of the ETHICSearch service.
INTERNATIONAL INITIATIVES - Associate Regulation Counsel prepared a memo for former
ABA President Robert Grey regarding the lawyer regulation in the United States and the
implications of global legal practice developments for his participation on a panel at the October
meeting of the Union Internationale des Avocats.
She also participated in meetings of the ABA Task Force on International Trade in Legal Services
to discuss the ways in which the Task Force can work cooperatively with the U.S. Department of
Commerce to gather data relating to exports in legal services and identify outreach efforts to state
and local bar associations regarding implementation of ABA policies relating to practice in the
U.S. by foreign lawyers.
POLICY IMPLEMENTATION - The Center Policy Implementation Committee began its efforts to
promote state adoption of the recently amended Rules 1.0, 1.10 and 3.8 of the ABA Model Rules
for Professional Conduct.
The Committee also prepared several comparison charts to the ABA Model Code of Judicial
Conduct (2007) at the request of state committees including 1) a comparison to the recently
amended Arizona Code of Judicial Conduct, and 2) a comparison of the current Tennessee
Arizona has adopted a revised Judicial Code and Mississippi and Tennessee have formed study
committees to consider amendments to their judicial codes based upon the 2007 changes to the
ABA Model Code of Judicial Conduct.
Missouri adopted a version of the ABA Model Rule for Trust Account Overdraft Notification.
Materials were provided on recently amended Rule 3.8 of the ABA Model Rules of Professional
Conduct to the Pennsylvania Professional Conduct Rules Committee which is studying a
possible amendment to their rule.
The Supreme Court of Tennessee entered an order adopting multijurisdictional practice of law,
major disaster and in-house counsel registration rules, effective January 1, 2010.
Charts were prepared on the applicability of the requirements of the ABA Model Court Rule on
Insurance Disclosure to in-house counsel and on the status of state implementation of recently
adopted Rules 1.10 and 3.8 of the Model Rules of Professional Conduct. (See related charts)
PROFESSIONAL DISCIPLINE - The ABA Standing Committee on Professional Discipline
electronically published the 2008 Survey on Lawyer Discipline Systems. The annual survey is the
only nationwide compilation of data relating to the budgets, caseloads, and staffing of lawyer
disciplinary agencies in the United States.
The Standing Committee on Professional Discipline provided comments to the ABA Criminal
Justice Section regarding its proposed resolution "Attorney Error v. Attorney Misconduct”
including recommending that the drafters review the existing Judicial Response to Misconduct
The Committee voted to support a resolution by the ABA Task Force on Financial Markets
Regulatory Reform for adoption by the ABA Board of Governors at its October meeting. The
resolution opposes provisions in the Consumer Financial Protection Agency Act ("CFPAA"),H.R.
3126 which seek to regulate lawyers engaged in the practice of law, except to the extent that
lawyers are currently subject to regulation by a federal agency under existing law.
Regulation Counsel provided comments to the ABA Government Affairs Office on
correspondence on the “Red Flags” Rule. On October 29th, the ABA's motion for summary
judgment for declaratory and injunctive relief from the Rule’s application to lawyers was granted.
PROFESSIONALISM – The accreditation standards subcommittee of the Standing Committee on
Professionalism developed additional draft recommendations for the Bar Accreditation Standards
Review Committee for changes to the Standards and Rules of Procedure for the Approval of Law
The Advertising Web page was updated to include changes to the Differences between State
Advertising and Solicitation Rules and the ABA Model Rules of Professional Conduct subsequent
to new advertising rules that took effect in Vermont and Louisiana.
Professionalism counsel participated on a conference call with the National Organization of Bar
Counsel Professionalism Committee that finalized recommendations for a report regarding law
school professionalism programs.