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21 Litig. News 1 (1995-1996)

handle is hein.journals/lignws21 and id is 1 raw text is: Amolicull IBai Assovialion
750 Noith ILake Shoic D~ike
Cica';go), lllimp, ( 00011 -4-19U7

AIl'uI.cl I ciiili AssMK'ialIIuII


Professional Conduct
• Senate considers bill exemptling
DOJ attorneys frot states' ethics
Page 4.
- Litigators should seek input
otn draft Restatementt of Law
Governing Lawyers.
Page 8.
'lhr0 War
- Are court rulcs requiring local
outnsel a necessity or nuisance?
A lihigator and judge air opposing
Page 7.
High Tech
- Catt too many bells attd
whistles ilule the effecliveness
of trial evidence?
Page 8.
- Litigalors brave Itew worlds
opened by digitilization and
the Inlernet.
Page 6.
- Bankruptcy Court experimelts
with computerized liling system
and oil-ine docketing.
Page 3.
Begging to Question
* Readers share views otn
allowing jurors to ask questions
during trial.
Page 2.
Hell) Wanted
- A1IA seeks volunteers f'or
Easlem Europe.
Page 5.
Watch Your Step
- Panel Ix)ints out pitfalls for
litigators representing debtors
in bankruptcy cases.
Page 3.

Ethics Committce Opinion Offers
Guidance on Ex Parte Contact Issues
lBY WILn~l E. MAYnE.:t
III ii;,  sI is Nr~ns Asi)i'IAi r I'illliik
1 n iiolin on tlle plre.-ilmlldiiieiit ser.,ioni of Rule 4.2
that is currently Iracked in imiany slate  lhics codes, the ABA
Committe on Ethics and Prolfssionlal Rcsponsibi lily has ad-
dressed imultiple issues regarding the nile's meaning and applica-
lion. Specifically, the Coommittee discussed the extent to which
opposing coLuISl may colnlnltllae directly with employees of
a corporation known Io have legal representation, and whether
prosecutlors may deal directly with represented suspects prior
to criminal inidictment.
Oi tle laller issue, the Conmmnittee broadly states that Model
Rule 4.2 applies to cr rimiinal its well as civil proceedings aid that
the elhical rule precludes proseculors from contaclillg persons
known ito be represented by counsel oI I laler even before
arrest or the ililuilioln of formal charges.
The CoiiIilte's opinion tius squarely conllicts wilh internal
reulations of tie U.S. Juslice Dl)epartnent. In general, those
(Ilease turn to page 5--Ethics Opinion)

ABA Deleg'ates Amend
Model Rule
l11 SUSAN ,l. B.CKiR
t.I I Il;  los Ni.%%s AsoiH m tI:I  I uI|iil
T    he ABA I louse ot I)elegates has amended Model Rule 4.2
regarding wholl attorleys may ethically colIact directly durinlg the
course of litigation or otlier legal illters.
Before tile allelldlnenlt. Rule 4.2 prohibited ai allorney fron
colllunicatil g witlh a parly'' whol the lawyer knows to be
represenled by another lawyer it tile matIer. utless ile lawyer has
the consent ofile other lawyer or is authorized by law to do so.
'rile allleldllellt to Rule 4.2 changes a key word, substitutlig
the word person for party. This change, paired with exeln-
sive revisions to the Comnllt ito Rule 4.2, is intended to resolve
several Iong-standing Uiiccrlainlies regarding tile rule.
Most iniportaItly. it is now clear tIlat [title 4.2 estenlds beyond
naimed parlies tIo ile litigation or proceeding ind includes withii
its scope amiy perso knowin to lie represented by counsel wilh re-
spect it) the subIIject of the iiitcnded collunicalin.
At Ilie saille tlle. ;i llt Ie llmllelt to Ihe accolpallnyilig
(l'h'a. r0111 to Page .5-lli'lldmlll'llt)

Judgcs-Not Arl)itrators-Must Decide
Whether an Arbitration Matter is Time-Barred
Decision could impact arbilralion  ider all contracts
that incorporale New Nork law
l I  CAIi-clg ll. YAIm.ONSKI
I.I 11G, 1(0N N-. ASHI 0 ,IE EIoI

U nider ; receilt judicial decision.
dispuling iarlies whose conltract binds
I hemu omabilralion may nonetheless lind
Illlseilves iii court over i poltenlially
dislsitlive issue: whetlher tie coln-
plhlinaInl's clail is hal el by the stlitile
of lililitions.
Traiditionally. albilralion awards have
beii subject toljudicial review Illy  (in
very limited giouids. such ;is fraud. But
in Smith. //arti'. h ir'is UIiham & Co..
Ilti. %- Liice. 85 N.Y. 2d 193, 047 N.E.
2d 1308 (1995). New Yiii k' highest cmlll

opened the door Io judicial intervention
ill a signiliicail new area by holding tilt
s latll of lilitlations issues ILiUst be
decided by a court, noilt ll arbilralor.
The iilplicitions of ile I il'kit' deci-
silln lire expectled to reach far beyond
New York borders because it was based
oii a New Yolk choice-of-lw provision
tIhalt is fotid in illlily contralcts, aiccord-
ing Ill Rolilald M. Slurtz, Roselaid, NJ.
Chair of the Section of Litigalion's By-
laws, Resoilions and Bllllket Authority
Com   ilec, alnd ai flrler chair o ils Ar-

Iilration Coiiiiittee. AItIhough tie Luck-
it' holding ilns couilter to receilt decisions
by courts ill Clifolrnia. New Jersey, ld
elsewhere, StIrIZ says, coluirts aeross tie
counltry will lIe obliged to follow it whlere
tie parlies' lgreellelt inculdes al New
York choice-of-law provisiion.
The Lu'kiie case involved sieparlte
dispules between two national secirities
brokers and their customlers in Florida
and Virginia. The cstlOlmer agreinleiltns
included alrbitration clauses, followed
by i choice-of-lw provision slling that
tle Igrecilleilt ind its enforcelielt s1hall
he governed by tie laws of tIle State of
New York.
New York arhilration law requires
stalltlor), litle limlitationl queionisl to
be decided by lhe cours, and lh lalirties
agreed to refer such jluestions il tlhe
IIh. till-it 11) lg' .-+Arhiltrtlioll)

Model Rides of Professional Conduct

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