Work in Progress
Change is becoming the byword that characterizes the legal ethics field
Posted Oct 1, 2008 10:45 AM CST
By James Podgers
The ABA first drew up ethics guidelines for lawyers a century ago—and they’ve been a work in progress ever since.
During those 100 years, the ABA has replaced the original Canons of Professional Ethics twice. The association has also adopted Model Rules for Lawyer Disciplinary Enforcement and a Model Code of Judicial Conduct.
Indeed, the ABA has done just about everything in the professional conduct field over the past 100 years except actually discipline lawyers. The association always has recognized that as a province of the state supreme courts and their designated agencies (often the state bar associations).
Most of this action has taken place over the past 25 years or so. But if experts’ comments at a program commemorating the ABA’s work in the ethics field are any indication, a lot more changes could be on the horizon.
Panelists at the Center for Professional Responsibility’s August program at the annual meeting in New York City cited factors familiar to many practicing lawyers: the pressures of a competitive business environment, specialization, the growth of global practice, and intrusions by government and even clients into the profession’s long-standing structure of self-regulation.
“If anybody thinks foreign lawyers aren’t here already, I don’t know where they’ve been,” said William P. Smith III, general counsel of the State Bar of Georgia. “If we cannot develop a system that will bend under the pressure of the international economy, we will break.”
As a result of these pressures, speakers said, it may be time to take another hard look at the Model Rules, which serve as the basis for most of the conduct codes that govern lawyers at the state level.
“We need a re-examination of where we are and how we regulate ourselves,” said Carolyn B. Lamm of Washington, D.C., who became ABA president-elect at the close of the annual meeting.
ONE SIZE MAY NOT FIT ALL
Deborah l. Rhode, a professor at Stanford law School, set the tone for much of the panel’s discussion when she identified some key issues:
• Does one regulatory structure really work best for a profession in which there are so many differences among practice settings and substantive fields?
• Does the current framework ensure access to justice, especially for low- or middle-income people? • Should the profession continue to engage in self-regulation, or will government and even private entities play a larger role?
“There is something fundamentally wrong with the way we regulate ourselves,” said Steven C. Krane, a partner at Proskauer Rose in New York City and the outgoing chair of the Standing Committee on Ethics and Professional Responsibility. He argued for the profession to abandon what he called “the fallacy of the monolithic client-lawyer relationship”—the notion that all lawyers work in essentially the same way on behalf of clients with often drastically different needs. He called for a more flexible regulatory approach that recognizes the growing variety of practice settings and client-lawyer relationships.
The profession also must recognize that the way it sees itself, especially in terms of independence, isn’t necessarily shared by other groups, said Laurel S. Terry, a law professor at Penn State University in Carlisle and a member of the ABA Standing Committee on Professional Discipline. “We need to look at lawyer regulation through a broader lens than we already do,” she said.
Links to papers written for the Centennial of the Canons of Professional Ethics:
"Repudiating the Holmesian "Bad Man" Through Contextual Ethical Reasoning: The Lawyer as Steward" (PDF), by Keith R. Fisher
"Bar Associations, Self-Regulation and Consumer Protection: Whither Thou Goest?" (PDF), Judith L. Maute
"The Evolving Regulation of the Legal Profession: The Costs of Indeterminacy and Certainty" (PDF), Irma S. Russell
"Moral Engagement Without the "Moral Law" A Post-Canons View of Attorneys' Moral Accountability" (PDF), Robert K. Vischer
A BUSY 100
Highlights of the ABA's activity in the ethics field since adopting the Canons of Professional Ethics in 1908.
1913 Standing Committee on Professional Ethics formed.
1964 Special Committee on Evaluation of Ethics Standards (Wright committee) formed.
1969 Model Code of Professional Responsibility adopted.
1972 Code of Judicial Conduct adopted.
1977 Commission on Evaluation of Professional Standards (Kutak commission) formed.
1978 Center for Professional Responsibility opens.
1983 Model Rules of Professional Conduct adopted.
1989 Model Rules for Lawyer Disciplinary Enforcement adopted.
1992 McKay commission issues Lawyer Regulation for a New Century.
1997 Ethics 2000 Commission formed.
2002 Revisions to Model Rules of Professional Conduct adopted.
2007 Revised Model Code of Judicial Conduct adopted.