The petition
WHEREAS, the State Bar of Georgia Formal Advisory Opinion Board published the "First Publication of Proposed Formal Advisory Opinion Request No. 05-R6" in the June 2007 issue of the Georgia Bar Journal; and
WHEREAS, the undersigned members of the State Bar of Georgia commend the conscientious efforts of the Formal Advisory Opinion Board in addressing the difficult issue of interpreting Rule of Professional Conduct 1.15(I)(b) as it is now worded; and
WHEREAS, the undersigned members of the State Bar of Georgia are concerned about the intrusion into attorney-client confidentiality, creation of conflicts between lawyers and clients, allowing purported creditors with dubious claims to hold settlements hostage, and the prospect of becoming unpaid collection agents for purported creditors with dubious claims against clients; and
WHEREAS, the undersigned members of the State Bar of Georgia are concerned about the meaning of the statement that in order to create a duty to a client's creditor the creditor's claim must be "prima facie valid," without clear guidance as to what "prima facie valid" means in this context; and
WHEREAS, the undersigned members of the State Bar of Georgia are concerned about the statement that "a third person with a presumptively enforceable claim has an 'interest'" in a client's funds without clear guidance as to what constitutes a "presumptively enforceable" claim by a purported creditor of a client; and
WHEREAS, in light of potential grievances by parties adverse to clients putting lawyers at risk of disbarment or other disciplinary action, there should be clearer clarity in guidance for lawyers in assessing their professional duties; and
WHEREAS, the Connecticut Bar Association Committee on Professional Ethics has interpreted Rule 1.15(I) so as to succinctly define the types of creditors' claims as to which lawyers must provide notification and accounting as follows: (i) judgments; (ii) statutory or judgment liens; (iii) letters of protection; and (iv) consensual security agreements. (See, e.g., Connecticut Bar Assn. Committee on Professional Ethics, Informal Opinion No. 99-41 (9/17/1999)); and
WHEREAS, rulings in some other states clarify that the duty to protect the claim of a purported creditor arises only when there is the equivalent of a statutory or judgment lien, or an assignment or lien specifically signed by the client. (See, e..g, Utah State Bar Ethics Advisory Opinion Committee Opinion No. 00-04 (6/22/2000)).
NOW THEREFORE, THE UNDERSIGNED MEMBERS OF THE STATE BAR OF GEORGIA PETITION THE STATE BAR OF GEORGIA AS FOLLOWS:
a. The undersigned members of the State Bar of Georgia respectfully request that the Formal Advisory Opinion Board further study Proposed Formal Advisory Opinion Request No. 05-R6 in light of the concerns expressed herein;
b. The undersigned members of the State Bar of Georgia respectfully request that the Disciplinary Rules and Procedures Committee of the State Bar study possible revisions to Rule of Professional Conduct 1.15(I)(b) which would more clearly define the situations in which a lawyer may have a duty to notify purported creditors of a client, provide an accounting to such purported creditors, or disburse clients' funds to clients' creditors, by limiting its application to clearly specific categories of claims, e.g., (i) judgments; (ii) statutory or judgment liens; (iii) letters of protection; and (iv) consensual security agreements; and
c. The undersigned members of the State Bar of Georgia urge the Board of Governors and Executive Committee to take such action as may be required to clarify Rule 1.15(I)(b) in a manner consistent with this petition.
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