Ethics

New York Makes Itself a ‘Model’ State

California now the only holdout on adopting the ABA Model Rules

Posted Sep 1, 2009 9:40 PM CDT
By Richard Acello

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Steven Krane
Photo by Tim Llewellyn

It’s now down to one. af­ter a new set of ethics rules became effective in New York on April 1, California is the only state that has not adopted either the form or substance of the ABA Model Rules of Professional Conduct.

A review process is under way in California that could lead to the adoption of the Model Rules there, but a final decision by the state supreme court still may be months away, and the outcome is uncertain.

As the name implies, the ABA Model Rules of Professional Con­duct have no binding effect in themselves, but they are the primary basis for the ethics codes that regulate lawyers at the state level. After the ABA’s policymaking House of Delegates adopted the Model Rules in 1983, most states implemented at least their format—a combination of black-letter directives and commentary providing guidance on following them.

An extensive review by the Ethics 2000 Commission triggered changes in the Model Rules and a new round of evaluations of state professional conduct codes. Most states have made at least some revisions based on the Ethics 2000 recommendations.

California remains the only holdout. The state supreme court never adopted the 1983 version of the Model Rules, and a state bar commission is still reviewing the post-Ethics 2000 edition, says Robert A. Hawley, dep­uty executive director of the State Bar of California.

“When Ethics 2000 was completed, we established a special commission that has been engaged in a rather extensive review that’s now taking a long time,” Haw­ley says, “but it is definitely focused on trying to figure out how California can conform to the ABA [Model Rules] without losing the precedent and history of the California rules.” The process is unlikely to be finished before the end of 2009, he says.

New York’s adoption of the Model Rules is being viewed as a milestone by proponents of greater uniformity in ethics rules for lawyers across the United States. Although lawyer regulation traditionally has been the province of the states, many practitioners and ethics experts say uniformity is becoming increasingly attractive as law practices expand to new jurisdictions.

New York’s action “is very significant,” says Burnele V. Powell, a professor at the University of South Caro­lina School of Law in Colum­bia who served on the Ethics 2000 Commission. “Anything that can be done to underscore that ethical expectations are consistent no matter where you encounter lawyers is a good thing, and New York is now saying they are part of a national consensus.”

Lucian T. Pera, another member of the Ethics 2000 Commission, also welcomes greater uniformity in professional conduct rules for lawyers.

“Whether you are a divorce lawyer in Jackson, Tenn., or a bond lawyer in Los Angeles, the work is becoming more regional and national,” says Pera, a partner at Adams and Reese in Memphis. “The divorce lawyer in Jackson will deal with a number of clients, and they’ll have all sorts of issues beyond Tennessee. They’ll have a new job, or be in the military, or they have other inter­state issues in a way they wouldn’t have 20 years ago.”

THE LANGUAGE IS THE SAME

Perhaps the greatest benefit of New York’s new Rules of Professional Conduct (PDF) is that it will be easier to track and compare them with the ABA Model Rules and other state codes that use the ABA’s numbering and formatting system, suggests Steven C. Krane, a partner at Proskauer Rose in New York City. He chairs the New York State Bar Association’s Committee on Standards of Attorney Conduct, which shepherded the new code through the review and approval process.

As a result, Krane says, “I don’t think you can point to the adoption of the New York rules as aiding appreciably the goal of a national system of ethics rules because in large part what the courts did was reject most of the substantive differences between what we had in New York in the Code of Professional Responsibility and what the state bar had proposed in terms of substantive changes that came out of the ABA Model Rules. So in effect, to a great extent what we have in New York is the New York code renumbered.”

In one example cited by Krane, the court panel with final say over lawyer ethics rules in New York rejected the position adopted in February by the ABA House of Delegates to permit screening mechanisms so that one lawyer’s conflict of interest would not require an entire firm to be disqualified from a case. New York also declined to follow provisions in ABA Model Rule 5.5 that permit lawyers to practice under certain circumstances in jurisdictions where they are not licensed.

There are significant substantive variations among the states on ABA Model Rules in a number of key areas, points out Robert A. Creamer, an attorney in Evanston, Ill., who is a member of the ABA Standing Committee on Ethics and Professional Responsibility.

As an example, Creamer cites ABA Model Rule 1.6 on confidentiality. “Every state has revised 1.6 in some fashion,” he says. “The Model Rule says if a lawyer has information that’s otherwise protected as a client confidence, the lawyer may reveal such information to protect intended victims to prevent death or bodily injury.”

Creamer says 33 states have adopted the ABA’s “may reveal” standard, while 14 states say a lawyer must reveal the information and four others prohibit a lawyer from revealing the information.

Absolute uniformity among state ethics rules isn’t a necessity, says Stephen Gillers, a professor at New York University School of Law. “If we have appropriately framed conflict-of-interest rules, for example, different states may reflect different values,” he says. “The problem comes for the lawyer in cross-border practice if the lawyer travels to another state for client work, or has clients in many states. The problem is, it’s not always predictable whose rules will apply, and conflicts of interests and confidentiality are the two places where rules frequently diverge.”

In Creamer’s view, the states are further along toward meaningful uniformity in ethics standards than ever before. “When Ethics 2000 came around, the best anybody could hope for was at least that we’d use a consistent format so people would know where to find things. By that measure, we’ve succeeded beyond our wildest dreams.”

It’s a trend practitioners should welcome, Powell says. “Ultimately,” he says, “what lawyers want to know is, what is the rule?”

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