76 J. Kan. Bar Assn. 6, 20 (2007). New Horizons: Kansas Adopts Ethics 2000 Changes.

• Author: By J. Nick Badgerow

Kansas Bar Journals

Volume 76.

76 J. Kan. Bar Assn. 6, 20 (2007).

New Horizons: Kansas Adopts Ethics 2000 Changes

Kansas Bar JournalVolume 76, June 200776 J. Kan. Bar Ass'n 6, 20 (2007)New Horizons: Kansas Adopts Ethics 2000 ChangesBy J. Nick BadgerowI. Overview

The rules of ethics applicable to lawyers are, like the law generally, evolving creatures. As times change, new legal principles develop. As lawyers change - perhaps a few of them inventing new and different ways to depart from applicable norms - those norms must also evolve. And as disappointed clients look for novel ways of asserting claims, the mechanism for preserving clients' rights must deal with such changes.

A much-anticipated overhaul of the Model Rules of Professional Conduct (MRPC or Rules) was brought to fruition in the Report of the Ethics 2000 Commission of the American Bar Association, actually published in May 2001. In turn, Kansas took up these changes, which have now been adopted and approved by the Kansas Supreme Court, to become effective on July 1, 2007.

The purpose of this article is to review the history of the changes made by the American Bar Association (ABA) Ethics 2000 Commission, at the national and then the state level, and then to summarize several of the major changes brought about by the amended Rules in this state.

II. History

1. The ABA Commission

   In 1997, the ABA appointed a well-respected panel of lawyers to review the MRPC, which have been adopted in one form or another in the majority of the states. The goal was for the ABA to make global changes to the MRPC by the year 2000, hence the name adopted by that commission, "the Ethics 2000 Commission." The Commission on Evaluation of the Rules of Professional Conduct (as it was formally named) was comprised of 13 official members who were assisted by 250 advisory councilors. The commission met 39 days over a 40-month period and issued a comprehensive report in November 20001 and its "final" report in May 2001. Even then, the ABA House of Delegates was only able to review and approve one chapter of the rules in August 2001, before approving (with amendment) the entire plan in February 2002.2

   While a complete rewrite of the Rules may have been anticipated, the commission left the approach, structure, and most of the Rules in place from the then-existing version. The commission did adopt hundreds of changes, many of which are not significant - and many of which are very significant. Certainly, the goals, objectives, and tenor of the Rules remains unchanged.

2. The KBA Commission

   Just two months after the ABA's adoption of the Ethics 2000 report, then-KBA President James L. Bush appointed a commission of Kansas lawyers in April 2002. The mandate of this Kansas Commission was to review the ABA's Report and to submit a recommendation on whether to adopt any or all of the ABA's changes to the MRPC.3 The members of the KBA Ethics 2000 Committee (KBA/E2K Committee)4 worked diligently through the remainder of 2002, mainly in committees addressing each chapter of the KRPC.

3. Philosophy

   The first act of the Kansas Commission was to consider its philosophy in reviewing the ABA's recommendations. There were at least two approaches the commission could take; both of which have strong arguments in their favor, and each of which had strong advocates on the commission.

   The first approach would be to adopt all the ABA's changes unless some strong and valid reason justified the disapproval of a particular provision. One argument to support this philosophy is the fact that the ABA Commission, comprised of many very intelligent and qualified lawyers and professors, spent four years and many hours working through every word, phrase, and sentence of the Rules to come up with the proposed changes. Additionally, the more "uniform" the rules from state-to-state, the more predictable the practice for lawyers or firms practicing in several states, and precedents from one state would be more helpful in other states adopting the same changes.

   The other approach would be to review each change in the light of whether it would improve the present ethics and disciplinary system in Kansas. The arguments to support this approach include the fact that the present rules and system in Kansas are known and there are precedents on many of the existing rules. Moreover, the current Kansas rules underwent a lengthy approval process when adopted. Proponents of this philosophy argued that Kansas has always been independent, and that the "Model" Rules have not been adopted across the board without change by any state.

   Thus, the question devolved to an issue of "burden of proof": would a change be accepted unless shown to be clearly inappropriate, or would a change be adopted only if it was shown to be an improvement to the existing Rules?

   After much debate, it was this latter approach that held sway, and each change was analyzed by the various sub-committees to answer the question whether it would improve the Kansas Rules. This fundamental issue was sufficiently important that the commission reconsidered and redebated it at its meeting in April 2004, with the substantial majority of the commissioners again supporting this approach. That being said, more than 75 percent of the ABA's proposals were adopted by the Kansas Commission. Yet, the adoption of this philosophy has served to be the lightning rod for criticism of the KBA Commission's report.

   III. The Commission's Work

   After working through the summer of 2002, the entire committee met on Oct. 23, 2002. At that time, each sub-committee's report was reviewed and debated, after which a vote was taken. Some sub-committee recommendations were approved by the Committee-of-the-Whole, and some were not.

   A report was then prepared by KBA staff and delivered to the KBA Board of Governors (board). This was followed by a presentation of the report at a meeting of that board on Dec. 6, 2002.

   In that meeting, the KBA board requested (a) that the Report be placed in a different format, to allow a side-by-side comparison of the proposed changes to the existing Rules, and (b) that the KBA/E2K Committee explain its failure to adopt the changes proposed by the ABA Commission, which were not adopted by the Kansas Commission.

   The requested amended Report was provided to the KBA Board on June 23, 2003, after which a "new" KBA/E2K Committee was appointed, comprised of all persons on the prior commission who were willing to continue serving.

   The commission met on Oct. 10, 2003, made decisions and directed the preparation of the fully-amended and supplemental report requested by the KBA board, and that amended report was delivered during winter 2003. The Kansas Commission met again on April 30, 2004, and took up a member's request to reconsider the "philosophy" issue discussed above, i.e. whether to adopt all changes unless there were good reason not to do so, or to adopt a change only if it represented an improvement to the existing rules and structure. As noted above, the commission voted to stay with its original philosophy.

   At the April 30, 2004, meeting, the Kansas Commission also considered and voted on additional changes to the Model Rules, which had been adopted by the ABA since the initial enactment of ABA/E2K. Those actions resulted in another report to the KBA board, which the board in turn took up the KBA/E2K Committee's recommendations in August 2004.

   After the KBA's approval of the Ethics 2000 Report, the proposed amendments to the KRPC were submitted to the Kansas Supreme Court for approval and adoption. The Court then published the proposed amended Rules, and after a significant period for public comment,5 the Court did approve and adopt the KBA/E2K report on March 6, 2007. The new Rules are to become effective on July 1, 2007.

   IV. Changes in the Rules

   With that historical background, it is worthwhile next to consider several of the more significant changes imposed by the new KRPC.

1. Definitions

   1. "Informed consent"

      While the previous Model Rules included the concept of "consent," such as the consent to continued representation in the face of a conflict of interest,6 this new term adds specificity:

      'Informed consent' denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.7

      Thus, under this Rule, the concept of "consent after consultation" is expanded to emphasize the lawyer's duties:

      . to communicate "adequate" information about the situation;

      . to explain the material risks of the proposed course of conduct; and

      . to disclose and explain alternatives to the proposed course of conduct, which are reasonably available.8

      Of course, recommending the hiring of independent counsel can help to ensure that the client receives an objective description of the issue and the proposed course of action.9

   2. "Confirmed in writing"

      "Informed consent" relates to another important term that pervades the new Rules. This term is "confirmed in writing" and is defined as follows:

      'Confirmed in writing,' when used in reference to the informed consent of a person, denotes informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent. See paragraph (e) for the definition of 'informed consent.' If it is not feasible to obtain or transmit the writing at the time...