The
ABA Model Rules of Professional Conduct, created
by the American Bar
Association (ABA), are a set of rules that prescribe baseline
standards of legal ethics and professional responsibility for
lawyers in the United States
. The rules are merely recommendations, or
models, (hence the name "Model Rules") and are not themselves
binding. However, having a common set of Model Rules facilitates a
common discourse on legal ethics, and simplifies professional
responsibility training as well as the day-to-day application of
such rules.
As of 2009, 49 U.S.
states have adopted the rules in whole or in part, of which the
most recent to do so was Maine
.
State adoptions of the Rules
The ABA is a voluntary
bar
association without lawmaking power (meaning that it is just
like any other nongovernmental professional association).
Accordingly, the Model Rules are not legally binding in and of
themselves. However, they have been adopted, in whole or in part,
as the professional standards of conduct by the judiciaries or
integrated bar associations of 49 U.S. states. Rules adopted in a
particular state (that may be based upon the Model Rules)
are legally enforceable against the lawyers of that state
as well as any lawyer practicing there temporarily on a
pro hac vice basis.
On December 17, 2008, New York announced that it would finally
abandon the old
Model Code (it was the last state to do so) and adopt a heavily
modified version of the Model Rules, effective April 1, 2009. In
June 2009, the Supreme Court of Maine approved the adoption of the
Model Rules in that state, effective August 1, 2009.
California
has its own set of unique professional
responsibility rules. California rules differ significantly
from the ABA rules in structure and content. Besides the obvious
transactional costs incurred in retraining thousands of attorneys
(there are over 210,000 attorneys in California), another reason
for not adopting the ABA rules is that they conflict with the
fundamental
public policy of the
state.
For example, the
State Bar of
California and the
California State Legislature
have long taken the position that clients must be encouraged to
speak candidly to their counsel about both past and future actions
knowing their statements will be held in complete confidence. Then
their counsel can explain the relevant law to them and urge them to
conform their future conduct to the law, thus promoting lawful
conduct. In contrast, Model Rule 1.6 contains exceptions to
confidentiality for both violent and
nonviolent (e.g. financial) future crimes, which in turn creates a
strong disincentive for clients to discuss their plans with their
lawyers. In turn, clients may end up proceeding in total ignorance
of the relevant law (and violate it as a result).
Another notorious difference is that Model Rule 1.8(j) contains an
outright ban on
sexual relations
between lawyer and client (unless the relationship predated the
legal representation), while California Rule 3-120 only prohibits
sex under certain circumstances, such as where
coercion or
prostitution is involved or when it causes the
attorney "to perform legal services incompetently."
Since 2001, the Commission for the Revision of the Rules of
Professional Conduct of the State Bar of California has been
attempting a comprehensive revision of the California rules that
would, among other things, convert them into a localized version of
the Model Rules. However, the Commission's progress has been
extremely slow, simply because there are so many substantive and
structural differences between the California rules and the Model
Rules.
Self-governing body
Generally, the
legal profession in
the United States is a
self-regulating and
self-policing organization. Lawyers control
the regulatory institutions that control lawyers, and such
institutions are subject to supervision by the
judiciary, which itself consists of lawyers who
became judges. In contrast, many other professions, such as
medicine, are controlled by
executive
branch disciplinary bodies that have many members who come from
outside such professions, and who may have been appointed by the
governor of the state, who is not necessarily a member of those
professions.
The concept of the self-regulating profession has repeatedly been
attacked as ineffective in controlling unethical or incompetent
lawyers, especially after the
Watergate scandal. The Model Rules were
specifically formulated by the ABA's Kutak Commission after
Watergate to demonstrate that the American legal profession was
capable of regulating itself and to alleviate demands that lawyer
regulation be centralized into federal or state agencies directly
accountable to the public.
References
- Press Release: New Attorney Rules of Professional
Conduct Announced, Communications Office of the New York
Courts, 17 December 2008.
-
http://www.courts.state.me.us/rules_forms_fees/rules/MRProfCond6-4-09.pdf
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