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Published online by Cambridge University Press: 20 November 2018
Regulating lawyers is a three-part process. Rules must be formulated, they must be interpreted, and they must be enforced. Although those who formulate rules cannot be held responsible for their interpretation and enforcement, they can and should bring to their work an appreciation of the problems experienced in interpreting and enforcing earlier rules. One way to evaluate the proposed Model Rules of Professional Conduct is to ask whether they are properly responsive to problems that have arisen in interpreting and enforcing the Code of Professional Responsibility. That is the standard against which the Model Rules will be measured in this review. No effort, however, will be made to canvass all the problems that have been identified under the Code.
1 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 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
3 Letter from Professor Anthony Amsterdam to the Grievance Committee of the District of Columbia, quoted in Time, May 13, 1966, at 81.Google Scholar
4 ABA Canons of Professional Ethics in American Bar Association, Opinions of the Committee on Professional Ethics with the Canons of Professional Ethics Annotated and Canons of Judicial Ethics Annotated (Chicago: American Bar Foundation, 1967).Google Scholar
5 Concerning the relative significance of rules of professional conduct and ethics committee opinions in the governance of lawyers, one scholar has gone so far as to say that “the opinions … have equally as much–-and perhaps more–-to do with determining the conduct of most lawyers as does positive law.” Barlow F. Christensen, Group Legal Services 46 (Tentative draft, Chicago: American Bar Foundation, 1967), as quoted in Olavi Maru with Roger L. Clough. Digest of Bar Association Ethics Opinions 3 (Chicago: American Bar Foundation, 1970).Google Scholar
6 My colleague Ted Finman and I have made a study of the formal opinions of the ABA Committee on Ethics and Professional Responsibility since the Code went into effect and have found them to be seriously flawed. See Ted Finman & Theodore J. Schneyer. The Role of Bar Association Ethics Opinions in Regulating Lawyer Conduct: A Critique of the Work of the ABA Committee on Ethics and Professional Responsibility (paper delivered at the International Congress on the Ethics and Professional Responsibilities of the Legal Profession, Tel Aviv, Aug. 1980). Since the ABA committee is well known and influential with state and local committees, we see little reason to assume that those committees do a better job.Google Scholar
7 Model Rules 2.1–2.5.Google Scholar
8 Id. Rules 4.1–4.3.Google Scholar
9 Id. Rules 5.1–5.2.Google Scholar
10 Id. Rules 6.1–6.3.Google Scholar
11 Id. Rules 3.1–3.12.Google Scholar
12 Id. Rule 1.13.Google Scholar
13 Id. Rule 1.14.Google Scholar
14 Id. Rule 1.5(c).Google Scholar
15 Id. Rule 1.3. See also id. Rule 4.l(b).Google Scholar
16 ABA Formal Opinion 340 (1975), for example, discussed whether lawyers who were husband and wife but were not associated in practice could represent clients with differing interests. Since the problem here is that a lawyer's judgment on behalf of a client might be adversely affected by his or her personal interest in a spouse's practice, DR 5–101(A) is the governing rule, as the committee recognized. In its holding, however, the committee treated the rule as sometimes barring representations even when a client had consented after full disclosure of a personal conflict, confusing the rule, perhaps, with DR 5–105.Google Scholar
17 Cf. Hull v. Calanese Corp., 513 F.2d 568 (2d Cir. 1975).Google Scholar
18 But see Committee on Professional Ethics & Conduct v. Behnke, 276 N.W.2d 838 (Iowa 1979); In re Frerichs, 238 N.W.2d 764 (Iowa 1976) (violations of any Code provision, not just a DR, may be grounds for discipline).Google Scholar
19 ABA Informal Opinion 1373 (1976).Google Scholar
20 According to the preliminary statement of the Code:Google Scholar
The Ethical Considerations are aspirational in character and represent the objectives toward which every member of the profession should strive. They constitute a body of principles upon which the lawyer can rely for guidance in many specific situations. … An enforcing agency, in applying the Disciplinary Rules, may find interpretive guidance in the … objectives reflected in the Ethical Considerations.
Model Code, supra note 2, at 1. The comment to each of the Model Rules, in contrast, simply “explains and illustrates the meaning and purpose of the Rule.” Model Rules, supra note 1, at 5. More-over, the Model Rules purport not to “exhaust the moral and ethical considerations that should inform a lawyer.”Id. at 4.
21 Rules, Model, supra note 1, at 21.Google Scholar
22 EC 2–23 provides as follows: “A lawyer should be zealous in his efforts to avoid controversies over fees with clients and should attempt to resolve amicably any differences on the subject. He should not sue a client for a fee unless necessary to prevent fraud or gross imposition by the client.”.Google Scholar
23 F. Raymond Marks & Darlene Cathcart, Discipline Within the Legal Profession: Is It Self-Regulation? 1974 U. III. L.F. 193.Google Scholar
24 Model Rule 1.4.Google Scholar
25 Compare DR 6–101(A)(3) with Model Rule 1.2.Google Scholar
26 Model Rule 1.1 provides as follows: “A lawyer shall undertake representation only in matters in which the lawyer can act with adequate competence. Adequate competence includes the specific legal knowledge, skill, efficiency, thoroughness, and preparation employed in acceptable practice by lawyers undertaking similar matters.”Google Scholar
27 Rules, Model, supra note 1, at 10.Google Scholar
28 In its preliminary Scope and Definitions section, the Model Rules state:Google Scholar
Violation of the Rules is a basis for imposing professional sanctions. However, whether discipline should be imposed for a violation depends on all the circumstances, such as the willfulness and seriousness of the violation, extenuating factors, and whether there have been previous violations–-all matters involving enforcement discretion. (Emphasis added.)
29 Wolfram, Charles W., The Code of Professional Responsibility as a Measure of Attorney Liability in Civil Litigation, 30 S.C.L. Rev. 281, 303–19 (1979).Google Scholar
30 Rules, Model, supra note 1, at 4.Google Scholar
31 Id. at 4–5.Google Scholar
32 Model Code, supra note 2, at 1.Google Scholar
33 See Bickel v. Mackie, 447 F. Supp. 1376, 1383–84 (N.D. Iowa), aff'd, 590 F.2d 341 (8th Cir. 1978).Google Scholar
34 See Wolfram, , supra note 29, at 286–87. Of course most of the Model Rules, like most of the DRs in the Code, are too general or imprecise to provide a more specific standard of care than that which would otherwise be used in malpractice claims against lawyers.Google Scholar
35 Rules, Model, supra note 1, at 5.Google Scholar
36 Id. at 30.Google Scholar
37 DR 1–102(A)(2).Google Scholar
38 Model Rule 7.2(b) provides as follows:Google Scholar
A lawyer is chargeable with another lawyer's violation of the Rules of Professional Conduct if: (1) The lawyer orders or ratifies the conduct involved; or (2) The lawyer has supervisory responsibility over the other lawyer and has knowledge of the conduct at a time when its consequences can be avoided or mitigated by fails to take appropriate remedial action.
39 Model Rule 7.2(a) provides as follows: “A lawyer having supervisory authority over another lawyer shall make a reasonable effort to see that the conduct of the lawyer under supervision conforms to the Rules of Professional Conduct.”Google Scholar
40 Rules, Model, supra note 1, at 112.Google Scholar
41 Id. (“The measures a firm should take to fulfill its supervisory responsibilty depend on the firm's structure and the nature of its practice.”)Google Scholar
42 Disciplinary jurisdiction is usually tied to the state's, and particularly the courts', authority to license lawyers. Presumably, a corresponding system of firm or office licensing could be devised a well. The point is that this would appear to be a necessary prerequisite to any system of collective responsibility.Google Scholar
43 Id. at 112–13.Google Scholar
44 This is the clear implication, for example, of ABA Informal Opinion 1203 (1972).Google Scholar
45 Model Rules 7.3(a) provides as follows: “A lawyer acting under the supervisory authority of another person is bound by the Rules of Professional Conduct notwithstanding the fact that the lawyer's conduct was ordered by the supervisor.”Google Scholar
46 Model Rule 7.3(b) provides as follows: “A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer's resolution of a reasonably arguable question of professional duty.”Google Scholar
47 Like the Model Code, the Model Rules consider the circumstances under which a lawyer must and may withdraw from representing a client. Compare DR 2–110 with Model Rule 1.16. But neither the Code nor the Rules deal with the question of what constitutes effective withdrawal from representing a client on the part of a lawyer whose firm continues to represent that client or effective withdrawal from a particular matter on the part of full–time house counsel. For reasons why withdrawal in these situations should be construed to require quitting a job rather than simply ceasing to work on a case, see Theodore J. Schneyer, Limited Tenure for Lawyers and the Structure of Lawyer-Client Relations: A Critique of the Lawyer's Proposed Right to Sue for Wrongful Discharge, 59 Neb. L. Rev. 11, 17 n. 13 (1980). Extending the analysis set out in that article, there may be a case for giving house counsel the same immunity for carrying out the reasonable but mistaken orders of their lay superiors as Model Rule 7.3(b) confers upon lawyers who follow the orders of other lawyers.Google Scholar
48 DR 1–103(A) provides as follows: “A lawyer possessing unprivileged knowledge of a violation of [a DR] shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.”Google Scholar
49 Brown, Harold, A.B.A. Code of Professional Responsibility: In Defense of Mediocrity, Trial, Aug.-Sept. 1970, at 30.Google Scholar
50 Arkin, Stanley S., Self-Regulation and Approaches to Maintaining Standards of Professional Integrity, 30 U. Miami L. Rev. 803, 815 (1976).Google Scholar
51 See, e.g., E. Wayne Thode, The Duty of Lawyers and Judges to Report Other Lawyers' Breaches of the Standards of the Legal Profession, 1976 Utah L. Rev. 95; Note, The Lawyer's Duty to Report Professional Misconduct, 20 Ariz. L. Rev. 509 (1978).Google Scholar
52 Model Rule 10.3 provides as follows: “A lawyer having information indicating that another lawyer has committed a substantial violation of the Rules of Professional Conduct shall report the information to the appropriate disciplinary authority.”Google Scholar
53 Rules, Model, supra note 1, at 131.Google Scholar
54 Model Rule 8.1 provides as follows:Google Scholar
A lawyer shall render unpaid public interest legal service. A lawyer may discharge this responsibility by service in activities for improving the law, the legal system, or the legal profession, or by providing professional services to persons of limited means or to public service groups or organizations. A lawyer shall make an annual report concerning such service to appropriate regulatory authority.
55 Rules, Model, supra note 1, at 119.Google Scholar
56 One apparent distinction between Model Rule 10.3 and DR 1–103(A) turns out to be no distinction at all. The Code's reporting requirement applies only when a lawyer's knowledge of violations is “unprivileged.” On its face, Model Rule 10.3 has no such limitation. As the comment to Rule 10.3 explains, however, the reporting requirement is meant to be “qualified by duties owed to the lawyer's client,” including the duty of confidentiality under Rule 1.7. Model Rules, supra note 1, at 132.Google Scholar
57 Id. at 88, commenting on Rule 4.1.Google Scholar