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| The Early Days. Before the ABA established its
Canons of Ethics in 1908, there were no uniform rules of
professional conduct. The principal guidance to the legal profession
came from common law edicts setting forth a lawyer's duties, such as
to advocate zealously for one's client and to maintain a client's
confidences. These early standards were statements of principle with
little if any disciplinary enforcement. Early guidance also came
from treatises such as Baltimore lawyer David Hoffman's 1836 volume,
A Course of Legal Study, that included "Fifty Resolutions" which he
believed reflected the values important to attorneys of his time. In
1854 came Judge George Sharswood's A Compend of Lectures on the Aims
and Duties of the Profession of Law, the publication of his lectures
on the profession at the University of Pennsylvania. The first ethical code originated in Alabama in 1887, based in part on 150 Sharswood's precepts. In 1908, the ABA issued its first ethical principles, in the form of 32 Canons of Professional Ethics. But the ABA of 1908 was a far cry from the ABA today, exclusionary in membership and more interested in' protecting those lawyers who represented large monied interests than the millions who formed the constituency for populist politicians of the time. The stimulus for the ABA's Canons came not so much from a desire to control lawyer conduct as from a speech critical of the profession given at Harvard in 1905 by the country's number one populist, President Theodore Roosevelt. Henry St. George Tucker, a wealthy Virginia lawyer, was then president of the ABA. Tucker was a political opponent of Roosevelt, and took personally the President's criticism of corporate lawyers who made their living advising clients on ways to evade regulatory control. Tucker formed a committee to draft rules of conduct. Perhaps not surprisingly, the resulting Canons reflected more closely the concerns of wealthy "gentlemen" practitioners than they did the views of the President. Of the original 32 Canons, some clearly set a moral tone while others provided more specific regulatory principles. In reality, the former may have been designed primarily to regulate what powerful Philadelphia lawyer Henry Drinker called "Russian Jew boys" and other riff-raff who had become lawyers from "up out of the gutter." Drinker personified the elitism of the bar of the early twentieth century. He felt threatened by the idea that lawyers would lose professional status through creeping diversity, and so took matters into his own hands. As Chair of the ABA Committee on Professional Ethics for over a decade, he became a leading advocate of the Pennsylvania Preceptor Plan, a program designed to keep the bar clean by forbidding membership to lawyers from different ethnic backgrounds and lower social strata. The early Canons addressed issues such as advertising and fee arrangements, but not because these were seen as purely ethical concerns. Their purpose was largely to control the conduct of sole practitioners and non-corporate lawyers who had to hustle for business, unlike Drinker and his colleagues, whose client base emanated from their social and Big Business connections. This helped to ensure that the balance of power in the profession would remain securely entrenched in the hands of those who held it throughout most of the nineteenth century. THE ABA MODEL CODE. Over the first half of this century, the ABA Canons were expanded and improved on, finally increasing in number to 47. But not until 1964, when then ABA President and future Supreme Court Justice Lewis F. Powell formed a committee to develop a new set of standards, did the ABA even begin to modernize its approach. The result of Powell's initiative was the passage of the Model Code of Professional Responsibility in 196.9. The Model Code began its life successfully. Although membership in the ABA is entirely voluntary, within a few years most states adopted the Code, in whole or in part, for their own rules of professional conduct. Unlike the Canons, the Code had a clear and detailed structure: Nine Canons, in effect chapters, each embodying a very broad general principle, and within each Canon, a series of Disciplinary Rules (lAls) and Ethical Considerations (ECs). The Preamble explains the function of the different elements of the Car. The canons are statements of axiomatic norms, expressing in general terms the standards luct expected of lawyers in their relationships with the public, with the legal system, and with the legal profession. They embody the general concepts from which the Ethical Considerations and the Disciplinary Rules are derived. The Ethical Considerations are aspirational in character and represent the objectives toward which ever member of the profession should strive. . . The Disciplinary Rules, unlike Ethical Considerations, are mandatory in character. The Disciplinary Rules state the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action. . . . THE ABA MODEL RULES. Despite the success of the Code, some lawyers felt that the ABA had not progressed enough in articulating a modern set of standards. They argued for an approach along the lines adopted by the American Law Institute in forming its restatements of law, with black letter rules followed by annotated comments. In 1977 only eight years after passage of the Code, the ABA formed another rules commission, this time led by noted Kansas City attorney Robert J. Kutak, with Yale Professor Geoffrey Hazard, Jr. acting as Reporter, or chief of staff to the Commission. Popularly known as the Kutak Commission, this group set out to develop standards that better reflected the modern practice of law. Unlike the committee which drafted the Code, much of the Kutak Commission's work occurred in the light of public scrutiny, and the Commission provided drafts of its rules for criticism and debate to the public as well as to lawyers. The Kutak Commission published three drafts of its work in progress, in 1980 and 1981, and its 1982 submission to the ABA House of Delegates. True to its mission, the Commission recommended significant changes in certain traditional ethical precepts. Perhaps the most controversial was the idea that lawyers who see their clients doing harm to the public should have broad powers to abrogate attorney-client confidentiality where it is necessary, for public protection. "Whisttleblowing” provisions were drafted into both the rule on confidentiality and the rule describing the obligations of corporate counsel. While supported by much of the public, these provisions were excoriated by the majority of lawyers, especially trial lawyers and corporate counsel. By the time the ABA House of Delegates passed the Model Rules of Professional Conduct in August, 1983, these provisions had been removed. Indeed, one of the introductory paragraphs describing the scope of the Rules specifically warns against second-guessing lawyers who, because of confidentiality, decide not to disclose information. The ABA Model Rules are divided into brief black letter rules and longer Comment sections. According to the introduction, the purpose of the Comments is to explain and interpret: "The Comments are intended as guides to interpretation, but the text of each Rule is authoritative." Tables were provided that cross-referenced the sections of the Rules with their Code counterparts. These tables proved necessary, because many states, having so recently adopted the Model Code, were reluctant to adopt a new set of Rules based on a wholly different organizational scheme. By 1994 however, the District of Columbia and all but six states had adopted some form of the Rules as their own rules of conduct. Five states, Illinois, New York, North Mrblina, Oregon, and Virginia, base their rules on both the Model Code and Model Rules.' And one state, California. which had never adopted the Model Code, also chose not to adopt the Model Rules, preferring instead to revise its own system of codification in 1989. "ETHICS 2000," AND THE NEW ABA MODEL RULES. In the late 1990s, the ABA undertook yet another revision of the rules. It began as a modest effort to modify the ABA Model Rules with a few nips and tucks, and to harmonize them with the American Law Institute's (ALI) new Restatement the Law Governing Lawyers. By 2000 it ws clear that the ABA "Ethics 2000" Commission, or "E2K," as it became known, had taken on a full-scale revision of the rules. Unlike the Kutak Commission, Ethics 2000 did not seek a new rules structure but revisions with the same rule and comment organization as the current Model Rules. Many rules were changed little, while others were substantially modified. The commission conducted widespread public hearings and consulted an extensive advisory council in an effort to get as many divergent views as possible. The result was a complete revision of the ABA Model Rules, passed by the House of Delegates in 2002 and 2003. As we go to press with this edition, about half of tThe states have formally adopted their own versions of these new rules. THE ALI RESTATEMENT, AND THE MDP COMMISSION. Meanwhile, the ALI, which had begun to create its Restatement of lawyering in 1986, continued to revise that document throughout the 1990s. This and E2K's efforts were joined by those of the ABA's Commission on Multidisciplinary Practice (MDP Commission), which in 1999 and again in 2000 recommended changes to the rules governing lawyers who practice with accountants and other non-legal professionals. By the millennium, the efforts of the MDP commission and the ALI had, became increasingly political processes — perhaps not surprising in light of the history of rules-making from 1908 on. The MDP Commission, while proposing needed and perhaps inevitable reforms, met overwhelming resistance from those in the ABA who were afraid to yield on the issue of lawyers' monopoly of legal services. The ABA's House of Delegates soundly rejected the MDP -Commission's proposals more than once. The ALI was racked by political disputes from within. Criticizing the politicization of the Restatement, as exemplified by an incident in which insurance industry lawyers overtly lobbied for votes, one of the ALI's 3,000 members, Georgetown professor Sherman L. Cohn, wrote in 1997 that if the ALI had ever been considered "an objective, disinterested body [of lawyers that] struggled for a restatement of the law based upon their own consciousness of what the law is, . . . it is clearly not true today." Nevertheless, the ALI navigated through its issues and approved the Restatement, Third, of the Law Governing Lawyers4 before the new Model Rules were completed. At the same time however, its politicization, coupled with the fact that its purpose (unlike the ABA's) was not to create a work that would actually become the officially approved ethical standard in any jurisdiction, make it, at least in our judgment, significantly less important than the ABA Model Rules. Despite its rocky road to completion, however, the Restatement has garnered a good measure of general acceptance as a significant source document among both academics and courts. SOURCES OF GUIDANCE BEYOND THE RULE. Neither the ABA's nor the individual states' rules of ethics stand alone. The ABA Standing Committee on Ethics and Professional Responsibility drafts opinions on ethical issues. So too do the ethics committees of most states and several local bars. These opinions supplement and explain the rules in their respective jurisdictions. In addition, there are other sources of ethical guidance provided by both the ABA and other organizations. In the late 1970s, the ABA developed Standards Relating to the Administration of Criminal Justice for both prosecutors and defense lawyers. The Standards do not have the same authority as the ABA Model Code or Rules themselves, but are useful guidelines which have often been relied on by state and federal courts when evaluating the conduct of the criminal bar. The ABA's Model Code of Judicial Conduct, revised in 2004, is now in the process of being adopted by most states and federal courts. Numerous voluntary associations of lawyers have also created their own ethical guidelines. In addition to the ALI, the Federal Bar Association, for example, an organization made up of lawyers practicing federal law, issued its Model Rules of Professional Conduct for Federal Lawyers in 1990. The American Trial Lawyers Foundation, concerned by provisions in the ABA's proposed Model Rules, published the American Lawyer's Code of Conduct (ALCC) in 1982, and has significantly revised that Code since. Other special practice organizations, from national district attorneys and criminal defense groups, to associations of labor lawyers, patent attorneys, and so on, draft their own ethical codes. These, though not binding in individual states, provide important guidance from thoughtful colleagues who are engaged in a similar practice. |
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