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The Death and Regeneration of Ethics

Published online by Cambridge University Press:  20 November 2018

Murray L. Schwartz
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Extract

The American Bar Association's Commission on Evaluation of Professional Standards has proposed the replacement of the existing Code of Professional Responsibility with its Model Rules of Professional Conduct. The public discussion of the Model Rules has focused largely on specific provisions, such as the proposed requirement that lawyers disclose clients' confidences in some circumstances and the exhortation that all lawyers engage in pro bono activity. Another proposed change, however, would at least on its face seem to be more significant for the future of the bar's professional standards and its self-concept than for the resolution of particular professional dilemmas. That change is the proposed elimination of about half the current Code of Professional Responsibility: those provisions included under the rubric “Ethical Considerations.”

Type
Review Symposium: Model Rules of Professional Conduct
Information
American Bar Foundation Research Journal , Volume 5 , Issue 4 , Fall 1980 , pp. 953 - 963
Copyright
Copyright © American Bar Foundation, 1980 

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References

1 References in this article are to the following, the most recent version of the Model Rules: American Bar Association, Commission on Evaluation of Professional Standards, Model Rules of Professional Conduct (Discussion Draft, Chicago: American Bar Association, Jan. 30, 1980).Google Scholar

2 Rule 1.7. This provision has been largely responsible for a counter-code proposed by the Association of Trial Lawyers of America.Google Scholar

3 Lawyers' outcry against Rule 8.1 has led the Commission to tentatively withdraw that rule. See “Commission Votes Down Pro Bono Reporting,” 66 A.B.A.J. 951 (1980). However, the Association of the Bar of the City of New York's Special Committee on the Lawyer's Pro Bono Obligations has recommended that each lawyer be required to perform pro bono service for 30 to 50 hours per year; this obligation is to increase to either 40 to 60 or 50 to 70 hours per year after there has been sufficient experience with the lesser requirement. Association of the Bar of the City of New York, Special Committee on the Lawyer's Pro Bono Obligations, Toward a Mandatory Contribution of Public Service Practice by Every Lawyer (n.p., 1979). The report has not yet been adopted by the Association.Google Scholar

4 E.g., Rule 1.13 (organization as client); Rule 4.2 and 4.3 (fairness and unconscionableness in negotiations); Rules 9.2 and 9.3 (advertising and solicitation).Google Scholar

5 American Bar Association, Committee on Ethics and Professional Responsibility, Model Code of Professional Responsibility and Code of Judicial Conduct (Chicago: American Bar Association, as amended Feb. 1979).Google Scholar

6 This history has been recently set forth in Walter P. Armstrong, Jr., A Century of Legal Ethics, 64 A.B.A.J. 1063 (1978).Google Scholar

7 Id. 1068; Geoffrey C. Hazard, Jr., The Legal and Ethical Position of the Code of Professional Ethics, in 5 Social Responsibility: Journalism, Law, Medicine 5–6 (L. W. Hodges, ed. Lexington, Va.: Washington and Lee University, 1979); L. Ray Patterson, Wanted: A New Code of Professional Responsibility, 63 A.B.A.J. 639 (1977).Google Scholar

8 Armstrong, supra note 6, at 1069.Google Scholar

9 Preamble lC, Code, supra note 5.Google Scholar

10 Patterson, supra note 7, at 639.Google Scholar

11 Id. Google Scholar

12 Hazard, supra note 7, at 10.Google Scholar

13 Kutak, Robert J., Coming: The New Rules of Professional Conduct, 66 A.B.A.J. 46, 47 (1980). See also Preface to the Discussion Draft, Model Rules, supra note 1, at ii. The Comments to the Rules are explanatory; they generally do not propose prescriptions that go beyond the reach of the Rules.Google Scholar

14 The several views are represented by Jerold S. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America (New York: Oxford University Press, 1976); Maxwell Bloomfield, American Lawyers in a Changing Society, 1776–1876 (Cambridge, Mass.: Harvard University Press, 1976); Anton-Hermann Chroust, The Rise of the Legal Profession in America (Norman: University of Oklahoma Press, 1965); James Willard Hurst, The Growth of American Law: The Law Makers (Boston: Little, Brown & Co., 1950); Magali Sarfatti Larson, The Rise of Professionalism: A Sociological Analysis (Berkeley: University of California Press, 1977); Charles Warren, A History of the American Bar (Boston: Little, Brown & Co., 1911). An excellent appraisal of the various “findings” appears in Stephen Botein's review essay, Professional History Reconsidered, 21 Am. J. Leg. Hist. 60 (1977).Google Scholar

15 E.g., Armstrong v. McAlpin, 606 F.2d 28 (2d Cir. 1979); Kramer v. Scientific Control Corp., 534 F.2d 1085 (3d Cir.), cert. denied, 429 U.S. 830 (1976).Google Scholar

16 See, generally, Amitai Etzioni, Modern Organizations 58–67 (1964).Google Scholar

17 See works cited supra note 14. see also Schnapper, Eric, The Myth of Legal Ethics, 64 A.B.A.J. 202 (1978).Google Scholar

18 See, e.g., works cited supra note 14; Jerome Carlin, Lawyers' Ethics: A Survey of the New York City Bar (New York: Russell Sage Foundation, 1966); id., Lawyers on Their Own: A Study of Individual Practitioners in Chicago (New Brunswick, N.J.: Rutgers University Press, 1962); Barlow F. Christensen, Unauthorized Practice of Law: Do Good Fences Really Make Good Neighbors–-or Even Good Sense? 1980 A.B.F. Res. J. 159; John R. Dos Passos, The American Lawyer: As He Was–-As He Is–-As He Can Be (New York: Banks Law Publishing Co., 1907).Google Scholar

19 Schnapper, supra note 17; Charles W. Wolfram, Regulating the Legal Profession, 62 Minn. L. Rev. 619 (1978).Google Scholar

20 Hurst, supra note 14, at 289.Google Scholar

21 Id. Google Scholar

22 Pipkin, Ronald H., Law School Instruction in Professional Responsibility: A Curricular Paradox, 1979 A.B.F. Res. J. 247, 272–75.CrossRefGoogle Scholar

23 Cf. Schnapper, supra note 17.Google Scholar

24 The pressures are discussed in the author's article, Murray L. Schwartz, The Reorganization of the Legal Profession, 58 Texas L. Rev. (1980).Google Scholar

25 See Patterson, , supra note 7, at 640, 641; Murray L. Schwartz, The Professionalism and Accountability of Lawyers, 66 Cal. L. Rev. 669 (1978).CrossRefGoogle Scholar

26 Hazard has pointed out that the legal profession could be classified by a two-dimensional grid whose dimensions are function (advocate, negotiator) and situation in practice (solo practitioner, government lawyer). Supra note 7, at 8–9; see also Patterson, supra note 7, at 641.Google Scholar

27 Rule 2.Google Scholar

28 Rule 3.Google Scholar

29 Rule 4.Google Scholar

30 Rule 5.Google Scholar

31 Rule 6.Google Scholar

32 Rules 3.l(a), (f); 3.3(b), (c); 3.B(a)(2)(ii), (b)(6); 3.11.Google Scholar

33 Marshall, Burke, The Control of the Public Lawyer, in American Assembly, Law and the American Future, edited by Murray L. Schwartz, 167 (Englewood Cliffs, N.J.: Prentice-Hall, Inc., 1976).Google Scholar

34 Classification according to clients might also be regarded as affecting status. See text immediately following.Google Scholar

35 Disciplinary Rules 7–103, 9–102(B); Ethical Considerations 7–13, 7–14, 9–3.Google Scholar

36 Rules 1.11, 3.10.Google Scholar

37 Rule 1.13.Google Scholar

38 Rule 7.Google Scholar

39 Schwartz, Reorganization, supra note 24.Google Scholar

40 ABA Standing Committee on Specialization, Discussion Draft (1976); Discussion Draft II (1978) as cited in Comment to Rule 9.4, supra note 1, at 127.Google Scholar

41 E.g., California, whose specialization program requires satisfaction of performance standards and passing an examination. See Forum: Legal Specialization in California, 3 Los Angeles Law. 10 (Feb. 1980).Google Scholar

42 See Schwartz, Murray L., Lawyers and the Legal Profession: Cases and Materials 78–79 (Indianapolis: Bobbs–Merrill, 1979).Google Scholar

43 These changes are described in Schwartz, Reorganization, supra note 24.Google Scholar