Committee to define ‘past professional relationships’

first_img January 15, 2004 Gary Blankenship Senior Editor Regular News Committee to define ‘past relationships’ Senior Editor Still perplexed over what constitutes a lawyer’s past professional relationships, the Bar Board of Governors has asked a new committee to attempt to define it.The board also, at its December meeting, withdrew a proposed ethics advisory opinion about mandatory arbitration of disputes between a lawyer and client and handled several advertising appeals.Board member Henry Latimer, chair of the Board Review Committee on Professional Ethics, said the committee couldn’t agree on defining a lawyer’s prior professional relationship. The issue arose when a law firm inquired about mailing a seminar invitation without following the direct mail rules.Bar rules allow such a mailing, but only to those with whom the firm has had a “prior professional relationship.”The Standing Committee on Advertising, finding difficulty agreeing on a definition, had referred the issue to the board. The BRCPE recommended to the board earlier this year that prior relationships be defined as encompassing only those of an attorney-client setting.But the board said that was too narrow and asked the committee to come back with a broader definition. Latimer and committee members said they couldn’t agree on one.“We on this committee could not come to a consensus; we all had different ideas,” board member Louis Kwall said. “It needs to go back to the appropriate committee to define prior professional relationship.. . . That should be defined by the writer of the words. They hopefully knew when they wrote it.”Board member Gary Leppla added the committee could find no case law or commentary to help with the definition.Board member David Bianchi said the board should seek a quick resolution so Bar members aren’t left in doubt. Mary Ellen Bateman, director of the Bar’s Division of Ethics, Professionalism, and UPL, noted that the Standing Committee on Advertising had issued an advisory letter, which will control until the board acts.The issue will be referred to the new advertising rules task force being created by President-elect Kelly Overstreet Johnson.On the arbitration issue, Latimer reported proposed advisory opinion 02-9 held it was permissible for a lawyer to include in a fee agreement a clause that any disagreements between the client and lawyer would be settled by arbitration.Committee members first thought that the provision should be limited to fee disputes or malpractice issues. But “after debate, the committee voted to withdraw the advisory opinion.. . . The thought was why create a problem if you don’t have one?” Latimer said.Leppla said that a law professor testified that such a clause literally could mean if the client disagrees with the selection of an expert witness in a case, that could go to arbitration.“The very idea of arbitrating malpractice is repugnant to me, and this opinion as proposed would allow that,” he added.The board approved the committee’s recommendation to withdraw the opinion.On one advertising appeal, Latimer said, the Standing Committee on Advertising had rejected a print ad for a bankruptcy practice because it included a picture of a child and also contained the language: “Do you want to stop your creditors from harassing you?” The advertising panel ruled the picture violated Bar rules because it was unrelated to the subject of the ad, and that the language created a reasonable expectation of a result the firm might not be able to deliver.The BRCPE agreed the picture violated Bar rules, but felt the language was all right, Latimer said. The board approved that position. Committee to define ‘past professional relationships’last_img read more