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RULE 3.2 EXPEDITING LITIGATION AND LIMITATIONS(A) A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client. (B) A lawyer shall not participate in offering or making an agreement [among parties to a dispute], whether in connection with a lawsuit or otherwise, to prevent or restrict the availability to the public of information that [the lawyer reasonably believes] [a reasonable lawyer would believe] directly concerns a substantial danger to the public health or safety, or to the health or safety of any particular individual(s). Comment Dilatory practices bring the administration of justice into disrepute. Delay should not be indulged merely for the convenience of the advocates, or for the purpose of frustrating an opposing party's attempt to obtain rightful redress or repose. It is not a justification that similar conduct is often tolerated by the bench and bar. The question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay. Realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client. Some settlements have been facilitated by agreements to limit the public's access to information obtained both by investigation and through the discovery process. However, the public's interest in being free from substantial dangers to health and safety requires that no agreement that prevents disclosure to the public of information that directly affects that health and safety may be permitted. This includes agreements or stipulations to protective orders that would prevent the disclosure of such information. It also precludes a lawyer seeking discovery from concurring in efforts to seek such orders where the discovery sought is reasonably likely to include information covered by subsection (B) of the rule. However, in the event a court enters a lawful and final protective order without the parties' agreement thereto, subsection (B) shall not require the disclosure of the information subject to that order. Subsection (B) does not require the disclosure of the amount of any settlement. Further, in the event of a danger to any particular individual(s) under Subsection (B), the rule is intended to require only that the availability of information about the danger not be restricted from any persons reasonably likely to be affected, and from any governmental regulatory or oversight agencies that would have a substantial interest in that danger. In such instances, the rule is not intended to limit disclosure to persons not affected by the dangers. Drafter's (Author's) Note: The language in the first phrase of part (B) is taken from that used in Rule 5.6, on restricting a lawyer's practice. The language reasonably believes parallels that used in Rule 1.6. The use of the phrase substantial danger to the public health or safety, rather than the more restrictive language of Rule 1.6 (imminent death or substantial bodily harm) is used here because the matters disclosed in the discovery process are not ordinarily protected by confidentiality under Rule 1.6, and also because the use of the term imminent is not consistent with the practical exigencies of dangers which may be inevitable but have a longer than imminent incubation period.
LETTER RE: PROPOSED RULE 3.2February 1, 2001
ABA Commission on Evaluation of the
Rules of Professional Conduct Re Proposed Rule 3.2(B) Dear Chief Justice Veasey, members of the Commission, and Professor Moore: On September 19, 2000 I wrote you regarding my proposal to add Rule 3.2(B) preventing lawyers from cooperating in secret settlements that would hide information from the public about substantial dangers to safety or health. Last weekend and early this week, in order to get a sense of support for such a rule in the academic community, I sent e-mails enclosing a copy of the proposed rule to a relatively small number of colleagues who teach legal ethics or similar courses-about 100 in all, all people, I believe without exception, whom I know personally or have previously communicated with directly about legal ethics matters or our ethics course book. I asked them to respond about allowing the use of their names if they agreed with the following language: "I concur that a rule along the lines of the language proposed here would be a valuable addition to the Model Rules of Professional Conduct."In the few days since, over 30 of these professors have authorized me to use their names in support, including, among other notable scholars Deborah Rhode, Monroe Freedman, W. William Hodes, William Simon, Roy Simon, and Peter Joy, who just received a major clinical award at AALS a few weeks ago. The entire list appears below.
I am the first to admit that my proposed language can be improved. It remains as it was when I drafted it for the Hofstra ethics conference in 1998. But the principle behind the rule is sound. Subject to wordsmithing, this is a rule whose time is come. I look forward to testifying before the Commission on this subject. (I've attached as a Word file for your convenience the paper I wrote and previously cited you that resulted from the Hofstra symposium.) Respectfully yours, Richard Zitrin Signatories: |
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