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 2015[update], 49 states and four territories have adopted the rules in whole or in part, of which the most recent to do so was the Commonwealth of the Northern Mariana Islands in March 2015. California is the only state that has not adopted the ABA Model Rules, while Puerto Rico is the only inhabited U.S. Territory that has not adopted them but instead has its own Código de Ética Profesional.
State and territorial adoptions of the Rules
The American Bar Association is a private sector voluntary professional association. As such, it has no lawmaking power or regulatory authority, but it is just like any other nongovernmental bar association. Accordingly, the Model Rules are not legally binding on ABA members or within any particular jurisdiction. However, the Model Rules have been adopted, in whole or in part, and sometimes in variation, as the rules of professional conduct for attorneys in 49 states, the District of Columbia, and four of the five inhabited U.S. territories. The rules of professional conduct or professional responsibility adopted in a particular state are legally enforceable against the lawyers of that state as well as any lawyer practicing there on a pro hac vice basis.
On December 17, 2008, New York announced that it would finally abandon the old ABA Model Code of Professional Responsibility (the last state to do so) and adopt a heavily modified version of the ABA 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.
In March 2015, the Supreme Court of the Commonwealth of the Northern Mariana Islands adopted its current Rules of Attorney Discipline and Procedure, which incorporates the ABA Model Rules by reference and expands upon them by adding another 22 local rules of professional conduct.
California still has its own set of unique rules governing professional attorney conduct. Although many of the rules are similar and sometimes identical to the ABA Model Rules, the California rules differ markedly from the ABA models in both format, scope and content. For example, under the ABA Model Rules, an attorney may be disciplined for the appearance of impropriety, regardless whether any actual impropriety occurred; whereas the California rules permit discipline for only actual impropriety. This reflects the nature of California law.
It is unlikely that California will ever adopt the ABA Model Rules apart beyond harmonising the format and existing California rules that are identical or nearly identical to ABA Model Rules. Reasons for this reluctance include the fact there are more than 280,000 attorneys licensed in California, so a drastic change from the existing rules to completely different rules would shock the profession and, ultimately, would most likely fail.
Another important factor is that the legal profession is regulated very differently in California than it is in the rest of the United States. Outside of California, the profession is regulated solely by the judicial branch of state government. Within California, the State Bar of California operates as a state government agency under the supervision of the California Supreme Court; but the State Bar was created by the California Legislature, and the Legislature has full power to regulate the legal profession, if it so wishes. In particular, the State Bar cannot collect annual member dues unless and until the California Legislature passes an annual State Bar Dues Bill, which the governor must sign into law. When Governor Pete Wilson vetoed the dues bill in 1997, the State Bar effectively shut down operations except for self-funded activities like the California Bar Exam. In 2010, Governor Arnold Schwarzenegger vetoed the dues bill but a crisis was averted on that occasion.
But the most important reason the California Bar is reluctant to adopt the ABA Model Rules is that most members believe the ABA Model Rules would not sufficiently protect the California public from harm. This is due to California law and public policy being so markedly different from the rest of the country in so many ways. For example, California is one of only four states where covenants not to compete are void as against public policy; and it is one of only three states where trusts are presumed to be revocable unless the trust instrument explicitly states the trust is irrevocable (whereas the opposite is true in the other 47 states).
By way of comparative example, California has long held the position that clients must be encouraged to speak candidly to their legal counsel about both past and future actions knowing their statements will be held in complete confidence. Their counsel can then explain the relevant law to them and urge them to conform their future conduct to the law, thus promoting lawful conduct. In contrast, ABA Model Rule 1.6 contains exceptions to confidentiality for both violent and nonviolent (e.g. financial) future crimes, which California believes creates a strong disincentive for clients to discuss their future plans with their attorneys - but for which the client might chose to comply with the law instead of violating it.
Another notable difference is that ABA Model Rule 1.8(j) contains an outright ban on sexual relations between attorney and client (unless the relationship predated the legal representation), while California Rule 3-120 only prohibits sexual relationships, that Require or demand sexual relations with a client incident to or as a condition of any professional representation; or, 2) Employ coercion, intimidation, or undue influence in entering into sexual relations with a client; or, 3) Continue representation of a client with whom the member has sexual relations if such sexual relations cause the member to perform legal services incompetently. The rule does not mention contracts for sexual services (i.e. prostitution) but as these contracts are criminally illegal in California, it is arguably not necessary to specify them.
A third major difference is that ABA Model Rule 4.1 prohibits an attorney from making a "false statement of material fact or law to a third person." While the ABA model 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.
In 2001, the Commission for the Revision of the Rules of Professional Conduct of the State Bar of California began a comprehensive revision of the California rules that would, among other things, convert them into a localized version of the ABA 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 ABA models. In October 2010, the State Bar of California formally adopted the Commission's report, recommending adoption of 67 proposed changes to harmonise the California Rules of Professional Conduct with the ABA Model Rules of Professional Responsibility.
On September 19, 2014, however, for reasons that were not fully explained, the Supreme Court of California rejected all of the proposed revisions and returned them to the State Bar. 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.
Except for the Patent Bar, there is no national legal profession in the United States but there are 56 separate legal professions. In contrast to most Commonwealth countries, where transactional lawyers and litigators are separately licensed as "solicitors" and "barristers," respectively; all American attorneys are licensed to practice as both solicitors and barristers (therefore these terms are almost never used). Likewise, whereas solicitors in England and Wales are professionally self-regulated by the private-sector Law Society of England and Wales while barristers are self-regulated by the private-sector General Council of the Bar, attorneys in all states except California, all territories and the District of Columbia are generally regulated by the public sector judicial branch of state, district or territorial government, as officers of the court. The legal profession in California is regulated jointly by the California Supreme Court, mostly through its agency the State Bar of California and by the California Legislature, which exercises legislative control over all professions.
Within the public sector regulatory agencies, boards and organisations, officers are invariably licensed members of the pertinent profession while key managerial and general staff typically are not. The Executive Director and Deputy Executive Director of the State Bar of California, for example, are active members of the State Bar. While either of their secretaries could be a member of the State Bar, they most likely are not. Similarly, the Board of Trustees that oversee the business operations of the State Bar of California under supervision of the California Supreme Court is legally required to be a mix of attorneys licensed to practice in California and "public members" who may not be licensed attorneys.
So, while American attorneys are regulated by public sector agencies instead of private sector law societies, most of the people who develop the regulatory policies are practising attorneys and sitting judges, so there is a degree of self-regulation but not nearly to the same degree that solicitors and barristers in England and Wales, and other Commonwealth jurisdictions are self-regulated by private sector associations.
- Press Release: New Attorney Rules of Professional Conduct Announced, Communications Office of the New York Courts, 17 December 2008.
- http://www.cnmilaw.org/pdf/court_rules/R07.pdf Northern Mariana Islands Rules of Attorney Discipline and Procedure.
- 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.
- http://www.calbar.ca.gov/AboutUs/BoardofTrustees.aspx Board of Trustees, State Bar of California.