One fine spring morning, John Smith, a newly apprenticed lawyer with a very old and established law firm in the city of Erehwon came in to see his mentor, a wise and scholarly senior partner with a question that had been burdening him:
“Sir, I have been researching an ethics question for another partner for the past three days and I am confused. Some of the cases I have been reading refer to a “code of professional responsibility” that include discussions of Disciplinary Rules and Ethical Considerations while others refer to different rules and comments that are part of the “rules of professional conduct” that appear to have been adopted by the various states. Sometimes, these rules of ethics are referred to as the ABA Model Rules of Professional Conduct or the ABA Model Code of Professional Responsibility. Can you explain to me how this came to be?
The partner looked thoughtfully at the young apprentice, set down his glasses, rubbed his brow and said, “Yes grasshopper, this can be confusing so let me try to explain…”
Early developments
The history of the development of legal ethics standards in the United States began in 1836 with David Hoffman’s 50 Resolutions in Regard to Professional Deportment published in a book entitled “A Course of Legal Study.” This was followed in 1854 by a series of lectures given by Judge George Sharswood, a Pennsylvania jurist and chief justice of the Pennsylvania Supreme Court, which were later combined and published in 1854 as Professional Ethics.
These works became the basis for the Alabama Code of Ethics that was adopted by the Alabama State Bar in 1887. This was the first formal code of ethics for lawyers adopted in the United States.
ABA Standards
Canons of Professional Ethics
Since 1908, the ABA and its volunteer members have been leaders in the formulation of professional ethics standards in the U.S. This has been an ongoing and evolving process that is very much a reflection of the growth and change in the profession, and in society as well.
During this time, the ABA has developed a number of standards for professional responsibility that have been widely adopted by the various states.
The first set of standards were known as the ABA Canons of Professional Ethics, which remained official ABA policy up through 1969. During this time, nearly every state patterned their rules of conduct after the Canons.
I mentioned earlier how the rules change with changing times. How the Canons handled lawyer advertising is an example of this. Canon 27 stated:
…It is unprofessional to solicit professional employment by circulars, advertisements through touters or by personal communications or interviews not warranted by personal relations. Indirect advertisements for professional employment such as furnishing or inspiring newspaper comments or procuring his photograph to be published in connection with causes in which the lawyer has been or is engaged or concerning the manner of their conduct, the magnitude of the interest involved, the importance of the lawyer’s position…and all other like self-laudation, offend the traditions and lower the tone of our profession and are reprehensible…
Now, because of constitutional challenges in the late 1970s and early 1980s, the restrictions around lawyer advertising have been relaxed and currently there is a proposal by the Association of Professional Responsibility Lawyers to relax them even further, essentially replacing Model Rules 7.1 Communication Concerning a Lawyer’s Services, 7.2 Advertising, 7.4 Communication of Fields of Practice and Specialization and 7.5 with a new Rule 7.1 that would make all lawyer advertising subject to a false, misleading standard. Some of the comments from Rules 7.2, 7.4 and 7.5 would be moved into the APRL version of Rule 7.1 for the general purpose of providing guidance as to what sorts of communications concerning a lawyer’s services would be considered to be false or misleading. For further information on this proposal, see the July ETHICSearch Tip of the Month entitled, Lawyer Advertising: ‘Tis a Gift to be Simple?
Model Code of Professional Responsibility
In 1964, at the request of then ABA President Lewis Powell, who later was appointed a U.S. Supreme Court Justice, the ABA created a special Committee on Evaluation of Professional Standards (the Wright Committee) to determine whether there should be changes to the Canons of Ethics. Their response was the creation of the Model Code of Professional Responsibility that remained in effect up through 1983.
Interestingly, recent advancements in legal ethics were the result of one of the darker eras of our recent history — Watergate, where lawyers representing President Richard Nixon were involved in planning break-ins at the opposing political party’s headquarters. At the ABA Center for Professional Responsibility’s 38th National Conference on Professional Responsibility, John Dean, one of Nixon’s lawyers, spoke about his experience, making the point that during that time he was uncertain as to when he was entering unethical territory. A summary of his remarks is available here.
One result of the Watergate era was the issuance of ABA Formal Opinion 366 (A lawyer, whether acting in his professional capacity or otherwise, is bound by the applicable disciplinary rules of the Code of Professional Responsibility.)
ABA Model Rules of Professional Conduct
In 1977, ABA President William Spann appointed the ABA Commission on Evaluation of Professional Standards (the Kutak Commission) to study whether the existing ethics standards provided adequate guidance for the lawyers of that era. In response, the Kutak Commission drafted the Model Rules of Professional Conduct that the ABA adopted in 1983, withdrawing the Model Code. In 1983, the ABA adopted the Model Rules of Professional Conduct, which are the current ABA standards. The Rules have been amended many times since their adoption, and have also undergone substantial revisions in 2002 by the Ethics 2000 Commission (E2K) and again in 2012 by the Ethics 20/20 Commission that conducted a very broad review of the model rules, studying the effect of recent technological developments, such as outsourcing and the globalization of the practice of law. To date, 49 states have patterned their rules after the ABA Model Rules.
The senior partner then paused, looking to see if his mentee had absorbed all of this information. Satisfied, he continued:
“Little one, it is important to bear in mind that the ABA ethics standards are model standards that the ABA encourages states to adopt. I can’t emphasize this enough. In each state it is the state Supreme Court that has the ultimate authority to adopt legal ethics and professional discipline standards that govern lawyer ethics in that state. That is why there can be significant variations between the different state versions of the Rules, and also why in some states you will find references to code provisions after the ABA adopted the Model Rules, because each state’s process for considering and adopting new ABA standards varies.
“Lawyers in each state must be careful to follow their state’s rules, because it is the state’s rules and not the ABA’s Model Rules of Professional Conduct that they must comply with in order to avoid discipline.”
John thanked his mentor and returned to his office both pleased and confident that he could now make sense of the material that just that same afternoon had been so confusing.
