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To:
The Board of Governors
From:
Professional Ethics Committee
Date:
April 8, 2003
Re:
Deviations from Model Rules
Although
the committee is recommending a major rewriting of
the Arkansas Rules of Professional Conduct based in
large part on the newly adopted Model Rules, it is
important to note that in many ways the Arkansas Rules
will deviate from the Model Rules. Some of the deviations
represent long standing Arkansas variations; some
represent recently adopted Arkansas changes; some
represent different evaluations of the appropriate
standards for the Arkansas Bar. In the eyes of the
committee, the most significant deviations in the
Rules themselves (as opposed to the comments) are:
1)
Arkansas would retain
the rule that an attorney must notify the client of
the receipt
of funds. Rule 1.4(c).
2)
Rule 1.5(a) would continue
to start with the language: "A lawyer's fee shall
be
reasonable."
3)
The attorney would have
discretion in deciding whether to reveal confidential
information to prevent a future crime, even if it
did not involve reasonably
certain death or substantial bodily harm. Rule 1.6.
4)
Rule 1.6(c) would continue
to give the lawyer discretion to note the fact of
withdrawal
and to withdraw or disaffirm any documents or opinions.
5)
In light of decisions
of the Arkansas Supreme Court, the comments to Rules
1.7, 1.9 and 1.10 (as well as the Preamble) discuss
the obligation to avoid
even the appearance of impropriety.
6)
Rule 1.8(b) would require
the client to consent in writing before the attorney
can
use information to the disadvantage of the client.
7)
Rule 1.8(c), which limits
gifts from clients to attorneys, would clarify the
degree
of relationship that is excluded from the prohibition.
8)
Rule 1.8(h) would require
the client to have independent legal counsel before
waiving potential claims against the attorney.
9)
The explicit rule on
attorneys who are related to each other and in separate
firms
would be retained. Rule 1.8(i); to be Rule 1.8(l)
10)
Rule 1.11(d) would clarify the
position of government attorneys seeking positions
outside the government.
11)
Rule 1.14 has language calling
for the exercise of extreme caution before the
lawyer is nominated to be a guardian for a client.
12)
Rule 1.15 will retain the
Arkansas IOLTA and notification of overdraft provisions
that have been inserted in recent years.
13)
Rule 3.6(a) will continue
to contain the list of statements to the media that
are
ordinarily prohibited.
14)
Arkansas would retain the
long standing rule that the disqualification of an
attorney-witness
is imputed to the entire firm. Rules 1.10 and 3.7
15)
Rule 4.2 will exclude a reference
to a court order. That material is adequately
covered in the comments.
16)
Arkansas would retain the
current rules on advertising and solicitations. Rules
7.1 - 7.3
17)
Arkansas would retain the
recently adopted rule on specialization. Rule 7.4
18)
The prohibition on misleading
statements of a partnership or other association
will be restated. Rule 7.5(d)
19)
Arkansas would not adopt the
proposed rule on political contributions. Rule
7.6
20)
Arkansas would retain the
recently adopted rules on the Arkansas Lawyer Assistance
Program. Rule 8.3(d,e).
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