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American Bar revises ethics code and maybe attorneys' public image

For only the second time in 73 years, a new code of ethics for the nation's lawyers has been prepared by the American Bar Association. the proposed revision would bring some major changes in the ways lawyers deal with the public.

If adopted by the full ABA, following hearings next month and a vote in January, the new code would:

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* Be more specific about lawyer competency and "reasonable" fees.

* Require lawyers to state their fees in writing in advance.

* Require prompt action by lawyers and progress reports to the client.

* Prohibit lawyers from writing into contracts illegal clauses that persuade many consumers that they have no legal recourse if, for example, merchandise they buy turns out to be defective.

* Expand the right of lawyers to advertise and, in some cases, to solicit clients.

* Require lawyers to speak up if their silence constitutes misrepresentation. For example, a lawyer hired by a home seller would have to tell a prospective buyer the house had termites if the buyer was unaware.

The new proposed code promises "tangible improvements" for the public, says ABA president William reece Smith Jr. of Tampa, Fla.

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The current code, adopted in 1969, has "great holes" in it and is "very vague" on some key ethical issues, says L. Ray Patterson, an ABA consultant on drafting the revisions. And the current code has been outdated by several Supreme Court decisions, including one allowing lawyer advertising, he says.

a major point of the proposed new code is its "attempt to make fairness an element of the legal process," says Mr. Patterson, a law professor at Emory University.

The proposed code does not define fairness; instead, it spells out "to which degree must [a lawyer] be sensitive to the legal rights of others," says Thomas J. McCormick, the attorney who did much of the research upon which the code is based. The proposed requirements are based on what the courts say is the law anyway, he adds.

A popular image of lawyers, Mr. McCormick says, is that they do anything in their client's interest, regardless of the interests of the other party in a case. But current laws set limits. Now the ABA code would set limits, he says.

Will the new code result in better legal service at less cost? McCormick thinks the more detailed definition of competency in the new code will improve the quality of service. But lawyers familiar with the code were reluctant to predict lower fees.

If adopted by the full ABA and the states, the code would have the effect of law, as the current ABA code does now. Disciplinary actions could be taken against lawyers failing to obey the code, and courts could refer to the code in deciding malpractice suits against lawyers.

But the real benefit of the new code is in giving more precise guidelines to lawyers who want to do the right thing, says Michael Franck, chairman of the ABA's discipline committee.

Parts of the proposed code are likely to be opposed at the ABA's hearings in New Orleans in August, Mr. Franck says. These include provisions for fairly unrestricted lawyer advertising and some client solition, he said.

On solicition, Franck, who opposes the proposal, asks: "Why should people have to leave their phones off the hood to prevent lawyers from chasing them? The proposed code would allow limited lawyer solicition under the auspices of certain organizations for which the lawyer is working.

The new code doesn't require lawyers to donate time to help clients who cannot afford fees. An earlier draft had such a requirement but was strongly opposed by many lawyers, including some who do such free work. Some felt it would be like requiring a person to make a donation to charity; others felt they were unable to provide such general help d ue to their specialized area of competency.

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