American Bar Association Model Rules of Professional Conduct
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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. They were promulgated by the ABA House of Delegates upon the recommendation of the Kutak Commission in 1983. 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[update], 49 U.S. states have adopted the rules in whole or in part, of which the most recent to do so was Maine
|This article is outdated. (March 2015)|
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. New York's version of the Model Rules was created by adjusting the standard Model Rules to reflect indigenous New York rules that had been incorporated over the years into its version of the Model Code. Even though New York did not adopt the Model Rules verbatim, the advantage of adopting its overall structure is that it simplifies the professional responsibility training of New York lawyers, and makes it easier for out-of-state lawyers to conform their conduct to New York rules by simply comparing their home state's version of the Model Rules to New York's version.
In June 2009, the Supreme Court of Maine approved the adoption of the Model Rules in that state, effective August 1, 2009. Among the portions of the Model Rules that the Maine Rules of Professional Conduct do not include is Model Rule 1.8(j) (2002) categorically prohibiting sexual relations between lawyer and client.
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 280,000 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 notable 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."
A third major difference is that Model Rule 4.1 prohibits a lawyer from making a "false statement of material fact or law to a third person." While the ABA rule expressly applies to any context in which a lawyer acts in a representative capacity, California Rule 5-200 prohibits an attorney only from making false statements before a court.
Since 2001, the Commission for the Revision of the Rules of Professional Conduct of the State Bar of California had 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 had been extremely slow, simply because there are so many substantive and structural differences between the California rules and the Model Rules. On September 19, 2014, for reasons that were not fully explained, the Supreme Court of California suddenly returned to the State Bar all proposed revised rules that had been submitted for its consideration. The Court's letter directed the State Bar to start the process all over again with a new Commission, and to submit a new set of revised rules by March 31, 2017.
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.
- Press Release: New Attorney Rules of Professional Conduct Announced, Communications Office of the New York Courts, 17 December 2008.
- Rogers, Joan C. (2 October 2014). "California Justices Tell State Bar to Redo Proposals for Updating Lawyer Conduct Rules". ABA/BNA Lawyers’ Manual on Professional Conduct (Bloomberg BNA). Retrieved 15 October 2014.
- Zitrin, Richard (10 October 2014). "Viewpoint: State Supreme Court Resets Ethics Rewrite". The Recorder (ALM Media Properties, LLC). Retrieved 15 October 2014.