E2K: Board Minutes 4/10/03

Minutes of the State Bar of Nevada

Ethics 2000 Committee

Date of meeting: April 10, 2003

Time of meeting: 2:00 p.m.

Venue: State Bar of Nevada, Las Vegas Office

The meeting called to order at 2:10 p.m. WOLFSON, KENNEDY, and WILLICK attended in person. BEESLEY, BRADSHAW, and PECK, in addition to State Bar President GLORIA STURMAN, participated via telephone. Reporter BARE and staff member MARZEC were also present. SCHUMACHER and STEMPEL were absent due to commitments scheduled prior to each of their respective appointments to the Committee

WOLFSON noted the Honorable Judge Kenneth Howard respectfully declined to be on the Committee due to time constraints. STURMAN volunteered to seek a replacement judge, from Northern Nevada if possible.

WOLFSON turned the floor over to BARE for an introductory statement. BARE stated the Committee constitutes a coming together of two entities, that of the Office of Bar Counsel and the Standing Committee on Ethics and Professional Responsibility, which had both unwittingly been working parallel but independent of each other reviewing Ethics 2000. Three Committee members, KENNEDY, STEMPEL, and WILLICK, are also members of the standing ethics committee and have worked extensively on this project.

BARE suggested the goal of this first meeting should be to (1) voteon the method of review and (2) establish Committee goals and deadlines. The basic formula should be report—publish the report—public hearings—submit administrative docket petition (ADKT).

WOLFSON raised the question whether the Committee was limited to reviewing ABA model rule changes. The Committee agreed that the ABA changes would be the focal point, however this is also an opportunity to revise any and all rules as deemed necessary.

BARE opined time would be best spent first determining if any reason exists not to follow the ABA changes, as most states will do so, and second to address Nevada-specific rules that aren’t addressed by E2K but need changes for other reasons. BARE cautioned against digressing into academic discussions unnecessarily given the time constraints of this Committee’s mission.

STURMAN proffered the Committee is not operating under a specific Court order and is not limited to ABA changes, in fact could rescind all the rules and start over. KENNEDY illustrated that the Court is not always predisposed to adopt ABA changes by referencing the PALMER decision, where the Court adopted a Nevada specific “speaking agent” test in interpreting SCR 182.

Discussion was initiated regarding whether rules should be reviewed in linear manner (in order) or in a categorical grouping, as Bar Counsel suggested in his preliminary analysis (agenda tab 1). WILLICK noted his standing Committee had used the linear approach to insure nothing was missed. The Standing Committee determined that best practice was to assign each member a rule or rules, which the Committee then later discussed en total to insure the benefit of the entire Committee’s experience. BARE noted the category approach worked for the Bar because some rule groups were less complicated than others, allowing large blocks to be handled quickly and affording a sense of accomplishment.

After debate and comment from all Committee members, a Motion was made by WOLFSON, seconded by BEESLEY, and unanimously passed for the following aspirational plan of review:

(2) The first 2/3 of the review time will be for meetings and the substantive work, with the last 1/3 slated for public hearings (look to the MJP public hearings as a model); and

(3) The Committee shall meet once per month, and try to review 20% of the rules at each meeting.

Discussion followed on time and place of meeting. Motion made and carried to meet every three to four weeks, no weekends, from 4 pm to 7 pm with dinner provided. Staff to research possibility of television conferencing.

A motion was made and carried to follow the categorical approach proffered by Bar Counsel, but because some rules will be more difficult than others, each week rules will be assigned from more than one category. WOLFSON motioned that BARE assign the rules each week, which carried unanimously.

The Committee discussed how much public interest might be expected. STURMAN noted the Multi Jurisdiction Practice (MJP) hearings were comprised of a half day in Reno, and 5-6 hours in Las Vegas, with the speakers primarily being in the legal field or law-related fields. WILLICK noted most other states which did this did not have much interest from the general public.

The Committee determined that public hearings must have 30 days’ public notice, effected by press releases, the Bar website, publication in location newspapers, publication in Nevada Lawyer and possibly the applicable county bar journal(s).

BARE offered to write a short article with links to selected documents which can be scanned as PDF files to Bar website. The article would put the members on general notice of the E2K committee and its mission statement. Initially, the Bar will post the ABA E2K redline with comments and the compare/contrast chart. The Committee accepted that offer unanimously.

Having established the strategy for review, the Committee voted to move on to substantive issues, which are summarized below.

b. Whether to adopt the ABA preamble and/or commentary (not currently adopted as per SCR 150);

c. The Standing Committee had discussed developing a new numbering system for the disciplinary rules to mirror the pertinent ABA model rules;

d. Certain rules will involve more discussion and research, and may manifest Nevada-specific concerns. For example:

iv. SCR 177 trial publicity. (BARE stated he can’t currently prosecute discipline cases under this rule due to in re Gentile);

v. SCR 189 (UPL) has already been significantly changed in re Multi-Jurisdiction Practice (MJP), ABA abandoned Model Rule draft;

vi. There is currently an ADKT pending with the Court to establish attorney specialization, which amends SCRs 196 & 198;

vii. SCR 199 (firm names) will have to be changed given the Michel case, where Judge Pro found this rule unconstitutional.

(2) WOLFSON, BARE, WILLICK, BEESLEY, and STURMAN discussed whether to have official “public meetings with notice to the public”, or, invite commentary from special interest groups, such as the Family Law Section, where appropriate. Committee determined by majority that it is not necessary and too burdensome to have all meetings set up as public meetings with notice (not including the public hearings that will be held) but that it would be appropriate to solicit specialized input from lawyer groups where appropriate on rule-specific issues.

(3) WILLICK suggested numbering issue should be resolved up front. Comments offered against renumbering: doing such would be confusing, make looking up case-law in Nevada more difficult, and make the rule change process burdensome. Comments for renumbering: the numbering system was changed in Nevada twice already, most recently ten or so years ago; there is not sufficient Nevada ethics law to be concerned about research difficulty; and that most research involves the Model Rules.

PECK noted that perhaps Supreme Court staff should have input on this issue. WOLFSON noted it would be helpful to recognize the same rules side by side (model rule to SCR) but conversely doesn’t want to have an overly-long citation, either.

WILLICK and KENNEDY explained the numbering system the standing committee developed was to have all rules be “150” plus the ABA counterpart: e.g.

Nevada rules which have no ABA counterpart could then be renumbered starting with 151, 152, 153, etc.

Noted that if this renumbering adopted, all the rules must be looked at anew for references to other rules in the text.

WILLICK moved to adopt new numbering system as working plan for now, which may be changed at the Committee’s discretion in future. BEELSEY seconded, motion passed unanimously.

(4) BEESELY moved to adopt “terminology’ and ‘comments’. KENNEDY noted the Court specifically declined to adopt the comments in SCR 150, which should be considered indicative of the Court’s view on the comments. BARE noted the ABA commentary is amended frequently and would be burdensome to keep up with, as well as that the commentary involves many issues which don’t apply in Nevada. SCR 150 already makes reference to the comments but does not adopt them.

BEESLEY rescinded his prior motion and moved to adopt the terminology but not the commentary, KENNEDY seconded, motion carried unanimously.

(5) WILLICK moved that commentary from ABA be attached as an appendix to the Nevada Supreme Court rules. BRADSHAW seconded. Motion did not carry, 2 AYE and 4 NAY.

(6) WOLFSON directed BARE and staff to work with Committee members and set next meeting date within four weeks. WOLFSON asked members to communicate unavailable dates to staff.

(7) Committee members were asked to accept the following research assignments, and will lead the discussion on his/her assigned rule(s) at the next meeting:

(8) The vote on whether to adopt the preamble tabled by WOLFSON for next agenda.