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Evaluating the Proposed Model Rules of Professional Conduct

Published online by Cambridge University Press:  20 November 2018

Robert J. Kutak
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Extract

In January 1980 the Commission on Evaluation of Professional Standards released a draft of proposed Model Rules of Professional Conduct. That draft is not a final draft, nor even a tentative one, but a Discussion Draft. By that title, and by the appearance of the draft in typescript the Commission has attempted to convey that the proposed Rules are a series of ideas meriting discussion, not fixed positions that we are prepared to aggressively defend. We know that the Discussion Draft requires editorial revision, that its substance needs additional refinement, that its policies deserve reconsideration. But after two and one-half years of dialogue, study, drafting, debate, and redrafting, we thought the Model Rules would gain much from the fresh perspective and critical appraisal that others could provide. To that end we solicited comments from lawyers and the public hoping to stimulate a public discussion of the role of lawyers in American society. That discussion will ultimately lead to a final draft of proposed Model Rules that reflects the best thinking of our profession as a whole.

Type
Review Symposium: Model Rules of Professional Conduct
Information
American Bar Foundation Research Journal , Volume 5 , Issue 4 , Fall 1980 , pp. 1016 - 1023
Copyright
Copyright © American Bar Foundation, 1980 

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References

1 Hoffman's Fifty Resolutions, the Alabama Code, and the 1908 Canons are reprinted in their entirety in Henry S. Drinker, Legal Ethics (New York: Columbia University Press, 1953).Google Scholar

2 See, e.g., In re Gamble, 122 Ariz. 2, 592 P.2d 1268 (1979); State ex rel. Nebraska State Bar Ass'n v. Hollstein, 202 Neb. 40, 274 N.W.2d 508 (1979); Westchester County Bar Ass'n. v. St. John, 43 A.D.2d 218, 350 N.Y.S.2d 737 (1974).Google Scholar

3 E.g., Committee on Professional Ethics and Conduct v. Behnke, 276 N.W.2d 838 (Iowa), appeal dismissed, 444 U.S. 805 (1979); Florida Bar v. Dawson, 318 So. 2d 385 (Fla.), cert. denied, 423 U.S. 995 (1975); In re Bunker, 199 N.W.2d 628 (Minn. 1972); In re Sullivan, 494 S.W.2d 329 (Mo. 1973); see, e.g., Cannon v. United States Acoustics Corp., 398 F. Supp. 209 (N.D. III. 1975), modified, 532 F.2d 1118 (7th Cir. 1976); Messing v. FDI, Inc., 439 F. Supp. 776 (D.N.J. 1977); Rowen v. LeMars Mut. Ins. Co. 230 N.W.2d 905 (Iowa 1975). A number of courts have also taken up the practice of enforcing the “axiomatic norms” of the Code's Canons. See, e.g., In re Hurd, 69 N. J. 316, 354 A.2d 78 (1976); see generally Note, Appearance of Impropriety as the Sole Ground for Disqualification, 31 U. Miami L. Rev. 1516 (1977). The ABA Committee on Ethics and Professional Responsibility may have inadvertently lent its imprimatur to such uses of the Canons and Ethical considerations. See ABA Formal Opinion 337 (1974).Google Scholar

4 These states include Georgia, Ga. Code Ann. tit. 9, app. pt. III (1973 & Cum. Supp. 1980); Iowa, In re Iowa Code of Professional Responsibility (1971) (reproduced in Iowa Code of Professional Responsibility for Lawyers (1971)); Louisiana, La. Rev. Stat. Ann. tit. 37, ch. 4, app. art. 16 (West 1974 & Cum. Supp. 1980); South Carolina, S.C. Comp. Laws Ann. § 16–18 app. (1979); Texas, Tex. Rev. Civ. Stat. Ann. tit. 14, app. art. 12 § 8 (following art. 320a-1) (Vernon 1973); Vermont, Vt. Stat. Ann. tit. 12, app. IX (Cum. Supp. 1980); and Virginia, Rules of Court, 216 Va. 941, 1061 (1976). See Committee on Professional Ethics and Conduct v. Behnke, 276 N.W.2d 838 (Iowa), appeal dismissed, 444 US. 805 (1979).Google Scholar

5 The Ethical Considerations were not adopted in Illinois, Kansas, Massachusetts, New Mexico, and Oklahoma. In Massachusetts, on adoption of the DRs, the Supreme Judicial Court added this ambivalency, “The Ethical Considerations … are not adopted as a rule of this court, but those Ethical Considerations form a body of principles upon which the … Disciplinary Rules as herein adopted are to be interpreted.” Sup. Jud. Ct. R., General Rules, R. 3.22, Canons of Ethics and Disciplinary Rules Regulating the Practice of Law. See generally Note, Lawyer Disciplinary Standards: Broad vs. Narrow Proscriptions, 65 Iowa L. Rev. 1386, 1387 n.9 (1980).Google Scholar

6 This is particularly evident with respect to roles and contexts that the Code ignores. In many circumstances, the rules necessary to resolve a difficult question are not to be found in any DR, and courts, for better or worse, are compelled to look to the ECs and to the Canons for a basis of decision. See, e.g., Cannon v. United States Acoustics Corp., 398 F. Supp. 209 (N.D. III. 1975), modified, 532 F.2d 1118 (7th Cir. 1976); In re Bunker, 199 N.W.2d 628 (Minn. 1972); In re Sullivan, 494 S.W.2d 329 (Mo. 1973).Google Scholar

7 See generally John F. Sutton, Jr., How Vulnerable Is the Code of Professional Responsibility? 57 N.C.L. Rev. 497 (1979); Comment, ABA Code of Professional Responsibility: Void for Vagueness? 57 N.C.L. Rev. 671 (1979); Note, supra note 5.Google Scholar

8 See note 5 supra. California has adopted its own Rules of Professional Conduct, which are based on the ABA Code but which also depart from it in significant respects including the omission of its Ethical Considerations. Cal. Bus. & Prof. Code (following 5 6076) (West Supp. 1980).Google Scholar

9 See generally Report of the Special Committee to Review ABA Draft Model Rules of Professional Conduct 11–14 (1980); National Organization of Bar Counsel, Report on a Study of the Proposed ABA Model Rules of Professional Conduct 2–7 (1980); Andrew L. Kaufman, A Critical First Look at the Model Rules of Professional Conduct, 66 A.B.A.J. 1074 (1980).Google Scholar

The Report of the National Organization of Bar Counsel is particularly interesting. At its recent meeting in Honolulu, the NOBC surveyed the 13 state representatives who attended the meeting through a subcommittee that prepared the report opposing the elimination of the “aspirational ethical considerations” and favoring retention of the Code's three-part structure. The question posed was whether the respective bar counsel opposed the change in format. All 13 representatives were opposed. The interesting point is that three of those states (Oklahoma, California, and Massachusetts) do not have Ethical Considerations. In two others (Texas and Virginia) the Code was adopted without the statement distinguishing aspirational ECs from obligatory DRs, and it is likely the ECs are thus obligatory, in which case the distinction between ECs and DRs becomes meaningless. See Committee on Professional Ethics and Conduct v. Behnke, 276 N.W.2d 838 (Iowa), appeal dismissed, 444 U.S. 805 (1979).Google Scholar

10 The proposed Model Rules have specific rules addressed to advising, advocacy, negotiating, intermediating, and evaluating. See generally Robert Aronson & Donald Weckstein, Professional Responsibility 336–41 (St. Paul, Minn.: West Publishing Co., 1980); Louis M. Brown & Harold A. Brown, What Counsels the Counselor? The Code of Professional Responsibility's Ethical Considerations–-a Preventive Law Analysis, 10 Val. U.L. Rev. 453 (1976); Harold L. Marquis, An Appraisal of Attorneys' Responsibilities Before Administrative Agencies, 26 Case W. Res. L. Rev. 285 (1976); SEC v. National Student Marketing Corp., 457 F. Supp. 682, 712–15 (D.D.C. 1978).Google Scholar

11 See generally Note, supra note 5; Comment, supra note 8.Google Scholar

12 This, in fact, is a statutory provision enacted in a number of states in the nineteenth century. See Cal. Bus. & Prof. Code § 6068(h) (West 1974). It is an example of the tendency, in matters relating to the conduct of lawyers, to state broad conflicting duties that make compliance and enforcement uncertain and unfair.Google Scholar

13 American Bar Association, Commission on Evaluation of Professional Standards, Model Rules of Professional Conduct, Rule 1.1 (Discussion Draft, Chicago: American Bar Association, Jan. 30, 1980). The specific standard is based on an analysis of factual patterns from case law in the disciplinary process, malpractice litigation, and habeas corpus proceedings raising Sixth Amendment claims. See, e.g., United States v. DeCoster, 487 F.2d 1197 (D.C. Cir. 1973); Gambert v. Hort, 44 Cal. 542 (1872); People v. Yoakum, 552 P.2d 291 (Colo. 1976); Livadas v. Monroe County Bar Ass'n, 43 A.D.2d 120, 350 N.Y.S.2d 35 (1973); see generally Annot., 96 A.L.R.2d 823, 828–29, 855–59 (1964). The standard is intended to closely track proposals found in ALI-ABA Committee on Continuing Professional Education, A Model Peer Review (Final Draft 1979).Google Scholar

14 See generally Lane v. Chowning, 610 F.2d 1385 (8th Cir. 1979); Cannon v. United States Acoustics Corp., 398 F. Supp. 209 (N.D. III. 1975), modified, 532 F.2d 1118 (7th Cir. 1976); Yablonski v. United Mine Workers, 448 F.2d 1175 (D.C. Cir. 1971); In re Estate of Gullett, 92 III. App. 2d 405, 234 N.E.2d 551 (1968); In re Estate of Glenos, 50 III. App. 2d 89. 200 N.E.2d 65; cf. Pappas v. Moss, 393 F.2d 865 (3d Cir. 1968); Carlos L. Israels, Corporate Purchase of Its Own Shares–-Are There New Overtones? 50 Cornell L. Rev. 620, 625–26 (1965).Google Scholar

Volumes of literature have been written on the obligations and special concerns of corporate counsel. None of that literature is authoritative, none of it is law. Much of it is in the form of debate, rather than solution. The lawyer is thus left to guess at the proper solution to a problem and hope for the best. The implications of the entity concept must be authoritatively explored in our profession's rules.Google Scholar

15 See American Bar Association, Committee on Ethics and Professional Responsibility, Model Code of Professional Responsibility and Code of Judicial Conduct DR 6–101, 7–101, EC 7–8, 9–2 (Chicago: American Bar Association, as amended Feb. 1979); State v. Martindale, 215 Kan. 667, 527 P.2d 703 (1974).Google Scholar

16 E.g., People v. James, 502 P.2d 1105 (Colo. 1972); see generally Annot., 80 A.L.R.3d 1240 (1977). Model Rule 1.4, supra note 15, requires adequate communication including periodically advising the client of the status and progress of the matter, explaining legal and practical aspects of alternative courses, and complying with reasonable requests for information.Google Scholar

17 See generally Smith v. St. Paul Fire & Marine Ins. Co., 366 F. Supp. 1283 (M.D. La. 1973); Herring v. Estelle, 491 F.2d 125 (5th Cir. 1974); Murray v. Florida 384 F. Supp. 574 (S.D. Fla. 1974).Google Scholar

18 See generally Annot., 80 A.L.R.3d 1240 (1977).CrossRefGoogle Scholar

19 Compare Cal. Bus. & Prof. Code § 6068(d) (West 1974).Google Scholar

20 See generally Warren A. Seavey, Handbook of the Law of Agency §§ 129–131 (St. Paul, Minn.: West Publishing Co., 1964).Google Scholar

21 See White, James J., Machiavelli and the Bar: Ethical Limitations on Lying in Negotiation, 1980 A.B.F. Res. J. 926.CrossRefGoogle Scholar

22 E.g., In re Corey, 515 P.2d 400 (Hawaii 1973); In re Sherman, 271 A.D. 462, 65 N.Y.S.2d 802 (1946); see SEC V. National Student Marketing Corp., 457 F. Supp. 682 (D.D.C. 1978); cf. Miller v. Ortman, 235 Ind. 641, 136 N.E.2d 17 (1956).Google Scholar

23 See notes 3, 6, and 15–18 supra. Google Scholar

24 See, e.g., In re Vandercook, 78 Wash. 2d 301, 474 P.2d 106 (1970); People v. James, 502 P.2d 1105 (Colo. 1972).Google Scholar

25 See notes 15, 16, and 18 supra CrossRefGoogle Scholar

26 See note 13 supra. Google Scholar

27 See, e.g., In re Greenberg, 15 N.J. 132, 104 A.2d 46 (1954); In re Williams, 221 Minn. 554, 23 N.W.2d 4 (1946); In re Bullowa, 223 A.D. 593, 229 N.Y.S. 145 (1928); In re Marron, 22 N.M. 252, 160 P. 391 (1916); Utz v. State Bar, 21 Cal. 2d 100, 130 P.2d 377 (1942); Gebhardt v. United States Rys., 220 S.W. 677 (Mo. 1920).Google Scholar

28 See Wolfram, Charles W., Client Perjury: The Kutak Commission and the Association of Trial Lawyers on Lawyers, Lying Clients, and the Adversary System, 1980 A.B.F. Res. J. 964.CrossRefGoogle Scholar

29 See United States v. Havens, 48 U.S.L.W. 4596, 4598 (1980) (“When defendants testify they must testify truthfully or suffer the consequences.”); see also Harris v. New York, 401 U.S. 222 (1971); Oregon v. Has, 420 U.S. 714 (1975); Eighth Circuit Survey: Evidence, 13 Creighton L. Rev. 1350 (1980).Google Scholar

30 See note 22 supra. Google Scholar

31 See, e.g., In re Insel, 260 A.D. 90, 20 N.Y.S.2d 729 (1940); Bar Ass'n v. Devall, 210 P. 279 (1922); see also In re Abrams, 56 N.J. 271, 266 A.2d 275 (1970); In re Disbarment Proceedings, 321 Pa. 81, 184 A. 59 (1936).Google Scholar