In Re Petition of the Nebraska State Bar Association to Adopt Rules of Professional Conduct Governing Attorneys, No. S-36-040001 (neb. June 8, 2005): Changing the Rules-- a Functional Analysis of Nebraska's Newly Adopted Rules of Professional Conduct

• Publication year: 2021

84 Nebraska L. Rev. 1310. In re Petition of the Nebraska State Bar Association to Adopt Rules of Professional Conduct Governing Attorneys, No. S-36-040001 (Neb. June 8, 2005): Changing the Rules-- A Functional Analysis of Nebraska's Newly Adopted Rules of Professional Conduct

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In re Petition of the Nebraska State Bar Association to Adopt Rules of Professional Conduct Governing Attorneys, No. S-36-040001 (Neb. June 8, 2005): Changing the Rules-- A Functional Analysis of Nebraska's Newly Adopted Rules of Professional Conduct

TABLE OF CONTENTS

I. Introduction ...................................................... 1311
II. Nebraska Rules of Professional Conduct ........................... 1315
A. Preamble ...................................................... 1315
B. Scope ......................................................... 1315
C. Terminology ................................................... 1315
D. Article 1--Client-Lawyer Relationship ......................... 1316
1. Competence ................................................. 1316
2. Scope of the Representation ................................ 1318
3. Diligence .................................................. 1319
4. Communication .............................................. 1320
5. Fees ....................................................... 1321
6. Confidentiality ............................................ 1323
7. Conflicts of Interest ...................................... 1326
8. Organizational Representation .............................. 1329
9. Clients with Diminished Capacity ........................... 1330
10. Duties to Prospective Clients ............................. 1330
E. Article 2--Counselor .......................................... 1331
1. Evaluation for Use by Third Parties ........................ 1331

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2. Third-Party Neutrals ....................................... 1331
F. Article 3--Advocate ........................................... 1332
G. Article 4--Transactions with Persons Other Than Clients ....................................................... 1333
H. Article 5--Law Firms and Associations ......................... 1334
1. Responsibilities of Partners and Supervisory
Lawyers .................................................... 1334
2. Multijurisdictional Practice ............................... 1335
I. Article 6--Public Service ..................................... 1335
1. Pro-Bono Activities ........................................ 1336
2. Appointments of Representation ............................. 1336
J. Article 7--Information About Legal Services ................... 1338
K. Article 8--Maintaining the Integrity of the
Profession .................................................... 1338
1. Candor ..................................................... 1338
2. Duty to Report ............................................. 1339
3. Misconduct ................................................. 1340
4. Choice of Law .............................................. 1340
III. Conclusion ...................................................... 1340

I. INTRODUCTION

September 1, 2005 marked a changing of the guard with respect to the regulation of lawyer conduct in the State of Nebraska. Upon the Nebraska Supreme Court's adoption of the Nebraska Rules of Professional Conduct ("Nebraska Rules ") through its ruling on In re Petition of the Nebraska State Bar Association to Adopt Rules of Professional Conduct Governing Attorneys,(fn1) the state shed its distinct position as one of only six jurisdictions not yet utilizing some form of the ABA Model Rules of Professional Conduct .(fn2) The new system represents the first complete revision of the professional ethical standards to which Nebraska lawyers are held accountable since the adoption of the Code

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of Professional Responsibility ("Nebraska Code "), and embodies a few key departures from the former standards in both substance and structure.(fn3) While it took the Nebraska Supreme Court more than sixteen months of open consideration and analysis to formulate and formally adopt the new rules once the initiative was raised by the Nebraska State Bar Association, their impact upon practicing lawyers within the state will be immediate and substantial with respect to many of the new provisions.(fn4)

Lawyers familiar with the Nebraska Code will recognize many of the substantive provisions of the former system, which have been carried forward to the Nebraska Rules relatively untouched.(fn5) There are, however, substantive and structural changes reflected in the new rules which will require the attention of those practicing within this jurisdiction in order to maintain continued compliance with the ethical considerations inherent in the practice of law. What follows is a topical analysis of some of the key substantive changes reflected in the new rules, as well as an introduction to the organizational structure utilized in the new system.

The new rules depart structurally from the former code by abandoning the canon model, under which the rules themselves were accompanied by guiding canons briefly summarizing the overriding principals with regard to a particular ethical responsibility.(fn6) These canons were further clarified through a series of ethical considerations, which laid out the duties, responsibilities, and liabilities associ

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ated with the principals falling within the coverage of the canon.(fn7) Finally, the specific rules were set forth, providing the legal framework which was essentially an embodiment of the ideals contained in the cannons and ethical considerations.(fn8)

In contrast, the Nebraska Rules mirror the structure of the ABA Model Rules of Professional Conduct, and more importantly, they utilize a restatement format which will be nearly universally familiar to those in the legal profession. Under this system, the rules are framed within eight different articles, each of which governs a different ethical duty.(fn9) This format results in a much more user-friendly interface in terms of accessibility and cohesion once an initial familiarity is gained with regard to the location of the rules within the ethical framework.(fn10) Commentators also cite the advantages which accompany conformity with a nearly universally accepted method of ethical regulation as necessitating adoption of the Model Rules format, both from an educational(fn11) and substantive context.(fn12)

As will be evidenced in the forthcoming analysis, the structural framework of the new rules represents a divergence from the Nebraska Code not only with respect to the usability and interface of the system in its totality, but with respect to the individual provisions and the extent to which the invocation of one rule will trigger corresponding duties and ethical considerations through the interwoven framework of the new system. This accumulation of duties resulting from the cross referencing of different articles and specific provisions in the

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new rules can create a veritable minefield for the unwitting lawyer who is unfamiliar with the new structure, as the violation of one specific duty may give rise to a number of satellite violations.(fn13) Thus, the structural divergence of the new rules from the Nebraska Code is of paramount importance, as the comparatively intricate framework will have an impact on the manner in which the ethical considerations contained therein are interpreted and applied.

Another central theme that arises throughout the new rules is a tendency towards a protective mentality with regard to the rights and interests of the client.(fn14) This is frequently accomplished via semantic departures from the former canon system which used prohibitions on forbidden lawyer conduct to affirmative duties owed to the client with regard to the specific ethical obligation in question. As will be subsequently illustrated, the effects of such a shift can be quite onerous upon the lawyer, and may dramatically alter the light in which the lawyer's conduct is viewed in disciplinary matters. In many of the new provisions, this phenomenon may also be characterized as an attempt to allocate the burden of protecting the legal interests which may be at stake should a particular course of conduct be pursued, or of ensuring compliance with the ethical consideration which has been invoked in a particular situation, upon the party best situated to navigate the complexities of the situation. Under either scenario, the new provisions tend to be skewed in a manner which at times explicitly, and at other times subtly, places the duty of protecting the rights, in

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terests, and objectives of the client squarely upon the shoulders of the lawyer.(fn15)

II. NEBRASKA RULES OF PROFESSIONAL CONDUCT

A. Preamble

The concept of a gradual digression from broad based ethical considerations and principals to the specific rules designed to govern the ethical responsibilities of the legal profession has not been abandoned altogether. The Nebraska Rules contain a preamble which sets forth "A Lawyer's Responsibilities."(fn16) The broad principles set forth in the Preamble carry forward many of the same concepts as the canons and ethical considerations, and similarly provide a type of framework for the system by identifying the ideals sought to be protected and enforced by the rules themselves.(fn17)

B. Scope

Following the Preamble, the Scope section briefly outlines some of the key principles with respect to the interpretation and application of the new rules. This should be the first step of inquiry for the lawyer faced with uncertainty regarding how she should resolve a particular ethical dilemma under the new rules, or for guidance as to the intended purpose of the new provisions. Although the Scope section is primarily restricted to broad based principles...