CONNECTICUT BAR ASSOCIATION TO THE MEMBERS OF THE STANDING COMMITTEE ON PROFESSIONAL ETHICS NOTICE OF MEETING The next meeting will be held on Wednesday, February 15, 2017 at 6:30 p.m. at the Quinnipiack Club, 221 Church Street, New Haven, CT. Refreshments at 6 p.m.; dinner at 6:30 p.m. AGENDA 1. Approval of the Minutes of the January 18, 2017 Meeting (Pages 1-2) 2. Report on Committee Sponsored CLE Programs (Deborah Del Prete Sullivan) 3. Report on Proposed Amendment of Rule 8.4 (Stovall) 4. Proposal by Association of Professional Responsibility Lawyers (APRL) to Amend Rules 7.1-7.5 of the ABA Model Rules of Professional Conduct, a. Draft Comments on APRL Proposal (Stith) (Pages 3-8) b. APRL Proposed Amendments to ABA Model Rules of Professional Conduct 7.1, 7.2, 7.3, 7.4, and 7.5 (Pages 9-20) c. 2015 Report of the APRL Regulation of Advertising Committee (Pages 21-59) d. 2016 Supplemental Report of the APRL Regulation of Advertising Committee (Pages 60-66) e. Invitation to Comment on APRL Proposal to Amend ABA Model Rules of Professional Conduct 7.1, 7.2, 7.3, 7.4, and 7.5 (Page 67) 5. Proposed Amendment of Practice Book § 2-32(a)(2) (Conover, Murphy, Rinehart) (Pages 68-72) 6. Other Business 7. Adjourn MINUTES OF A MEETING OF CBA PROFESSIONAL ETHICS COMMITTEE at The Quinnipiack Club, New Haven, January 18, 2017 Chair Stovall opened the meeting at about 6:35 p.m. Present were 15 other members: Benoit, Conover, Dauster, DeRosa, Horowitz, Kaplan, Knierim, Logan, Maurer, Reinhart, Slane, Santucci, Stith, Zaccaro, & Nessler. The minutes of the November 16, 2016 meeting were approved. Ms. Stovall informed the committee about Rule 8.4 happenings, with respect to the amendment that was approved at the last meeting, namely the addition of subsection (7) which proscribed certain harassment and discrimination. Ms. Stovall said that the CBA professional discipline and human rights committees have considered the change and CBA president Frank now hopes to submit the proposed change to the judges in April, after securing approval by the House of Delegates. Ms. Stovall said her impression was that the grievance committee would not be agreeable to this commictee’s suggestion that Practice Book Section 2-32 could be amended to say that any Jisoinlinary action under the new subsection (7) would be withheld until disposition of a timely- 1: rought complaint to a relevant such tribunal. The general consensus was that the committee should not be deterred from presenting such a provision. The committee discussed the newly adopted Continuing Legal Education requirement and verbally explored the extent to which professional ethics committee-related activities of members might be created as activity that helped fulfill the requirement. In discussion, members opined that activity that might qualify at least in part would include preparation and presentation of an opinion; less likely, simply attending a meeting. No specific conclusions were reached. A proposal to revise Rule 5.4 was next considered - namely, an amendment that would enable that “Upon notice to the court, a lawyer may share court-awarded legal fees with a non-profit organization that employed, retained or recommended...the lawyer....” It was pointed out that the proposal is old with respect to ABA Model Rules; that about 30 states have adopted the amendment; and that there is no record of problems. During discussion, it was proposed that the committee had the choice to approve the amendment as proposed, or to propose amending it, e.g., to limit the scope of “non-profit organization.” With respect to concerns raised about possible abuse, it was contended that “Upon notice to the court” would provide protection. On the other hand, it v/as asserted the 95+% of cases settle and are not court-approved. What is a charity, what is “non­ profit organization,” under the federal tax code was discussed. [It appears the term includes other than eleemosynary entities, such as credit unions, debt restructuring organizations, etc.] It was voted with no nays to recommit the opinion for further work to a subcommittee comprised of Messrs. Conover and Logan. A proposal originated by Association of Professional Responsibility Lawyers (APRL) to amend ABA Model Rules 7.1-7.5 was considered. The ABA is seeking comment. A multiplicity of Rule 7 changes would simplify the advertising Rules. Advertising that is false or misleading would be 1 proscribed (as presently), but many of the present Rules’ detailed specifications and commentary would be deleted. Ms. Stith made a number of preliminary comments for the committee’s benefit, pointing out where policy considerations adopted in Connecticut would be, or might be with some amendment, continue to be fulfilled. Touched on in general discussion were contingency fees; “ambulance chasing”; preservation of advertising records; permitting real-time electronic advertising (solicitation); and holding out as “specialist.” The matter was committed to Ms. Stith so she can to prepare for consideration at the next meeting a proposed committee comment to the ABA. The meeting was adjourned at about 8:30 p.m. Respectfully submitted, /cgnessler/ Charles N. ssler, Secretary 2 1 1 COMMENTS OF THE CONNECTICUT PROFESSIONAL ETHICS COMMITTEE ON 2 APRL PROPOSED REVISIONS TO ABA MODEL RULES 7.1, 7.2, 7.3, 7.4, and 7.5 3 4 February 15, 2017 5 6 7 The Connecticut Bar Association Standing Committee on Professional Ethics (The 8 Committee”) submits these comments in response to the Proposed Amendments to ABA Model 9 Rules of Professional Conduct 7.1, 7.2, 7.3, 7.4, and 7.5, which the Association of Professional 10 Responsibility Lawyers (“APRL”) has submitted to the American Bar Association for comment 11 and consideration. 12 13 The Committee largely agrees with APRL’s proposal to greatly simplify the ABA’s 14 Model Rules pertaining to lawyer advertising, and with APRL’s goal of “achieving greater 15 rationality and uniformity in regulatory enforcement of lawyer advertising and marketing.” 16 17 We agree with APRL that most of the Model Rule’s advertising provisions should be 18 removed and replaced with a new Model Rule similar to what APRL proposes as Rule 7.1. We 19 also agree that it is important to retain certain limitations on lawyer solicitations and 20 communications with potential clients, as APRL’s proposed Rule 7.2 provides. 21 22 We do urge APRL to consider adding one more provision to APRL’s proposed Rule 7.2. 23 While this particular provision does not appear in present Model Rule 7.3, it is in Connecticut 24 Rule of Professional Responsibility 7.3. Specifically, Connecticut Rule 7.3(b)(5) forbids lawyers 25 from soliciting employment concerning a personal injury or wrongful death claim less than 40 26 days after the accident or other incident has occurred. This per se prohibition is in addition to the 27 prohibition on communications involving coercion, etc. Having a flat ban on solicitations 28 shortly after an accident has occurred (we are not wedded to 40 days; some other jurisdictions 29 have a 30-day limitation) reaches communications that may not be in themselves coercive or 30 harassing, but that should not be undertaken for other reasons, as we explain below. 31 32 We also suggest that an additional sentence (regarding retention of advertisements) be 33 added to the APRL Rule 7.2 commentary, and that two additional sentences (regarding 34 advertisements that mention fees) be added to the APRL Rule 7.1 commentary. 35 36 Before addressing those issues in more detail, the Committee raises one point that may 37 require clarification. The 2015 Report of the APRL Regulation of Lawyer Advertising 38 Committee, issued on June 22, 2015, proposed a new Rule 7.1 in place of Model Rules 7.1, 7.2, 39 7.5. and 7.5. The Report made a strong case for limiting professional discipline for advertising to 40 violations of the general anti-fraud rule, ABA Model Rule 8.4(c). 41 42 However, on April 26, 2016, APRL then issued its 2016 Supplemental Report of the 43 APRL Regulation of Lawyer Advertising Committee (the “Supplemental Report”). The 44 Supplemental Report addressed solicitation and other communications with potential clients, 45 which are subjects covered in Model Rule 7.3. In the words of the Supplemental Report: 46 3 2 47 The [APRL advertising] committee has now . concluded that the legitimate 48 regulatory objectives of preventing overreaching and coercion by lawyers who use in 49 person solicitation and targeted communications with the primary motivation of 50 pecuniary gain can best be achieved by combining provisions of Model Rules 7.2 and 51 7.3 in a single rule [APRL Rule 7.2]. 52 53 APRL’s proposed Model Rule 7.2 retains most of Model Rule 7.3, including the 54 prohibition on solicitations and other communications “involving coercion, duress, or 55 harassment.’’ Presumably, these prohibitions and other provisions of APRL’s proposed Rule 7.2 56 would be enforced directly, and not through Rule 8.4(c), as they do not involve fraud. 57 (Comment 6 to APRL Rule 7.2 comes close to explicitly acknowledging this.) 58 59 We believe that it may be necessary for to clarify whether APRL’s proposal means that 60 lawyers would still be subject to discipline for solicitations and advertisements outside of 61 enforcement of Rule 8.4(c). 62 63 64 I. Comments Concerning Time Limitation on Contacting Accident Victims 65 66 One of the most important changes proposed by the APRL in its Supplemental Report is 67 to eliminate the prohibition on “real-time electronic contact” from present ABA Model Rule 7.3.