Regulation of Lawyers: Statutes and Regulations

Regulation of Lawyers: Statutes and Regulations

Description

This book contains rules regulating the behavior of lawyers and judges. These rules come from many sources: statutes, administrative regulations, rules of evidence and procedure, and, most prominently, ethical codes. These rules continue to grow and change. The 1993 edition of the book has hundreds of changes, some of them substantial, from the 1992 edition. The most important ethical codes for lawyers are those promulgated by the American Bar Association, The ABA’s first effort at codifying ethical rules was the adoption of the Canons of Professional Ethics in 1908. These (as amended) remained in effect—though with diminishing influence—for 62 years. Effective in 1970, the ABA replaced the Canons with the Model Code of Professional Responsibility. Within a few years, every state had adopted the new Code in some form. States varied somewhat in their adoptions, changing a word here or a sentence there, but most of the variations were modest. The only variation that was truly different appeared in California, which rejected or substantially revised many of the Model Code’s Disciplinary Rules and deleted all of the Ethical Considerations. In 1977, the President of the American Bar Association appointed a new commission to prepare a new set of rules. That commission soon became known as the Kutak Commission, after Robert J. Kutak, an energetic and visionary lawyer from Omaha, Nebraska, who chaired the commission until his death in early 1983. After much debate and several drafts, the ABA House of Delegates approved the Model Rules of Professional Conduct on August 2, 1983. It is often instructive to compare the Model Rules as adopted with parallel provisions in the Kutak Commission’s drafts. Many of these parallel provisions are contained in the Legislative History sections following each Model Rule. It is also often instructive to compare the Model Rules as adopted with state variations governing the same conduct. The states have been giving careful attention to the Model Rules. As of fall 1992, more than 35 states and the District of Columbia have adopted all or significant portions of the Model Rules. Several states, including New York, Oregon, Vermont, and Massachusetts, have rejected the Model Rules. New York, however, has amended its Code to include provisions of the Model Rules. California also has chosen not to adopt the Rules, but has amended its Rules of Professional Conduct to incorporate Model Rules provisions. This book contains both the amended California Rules and the amended New York Code of Professional Responsibility. It also contains important statutory material from both California and New York and the New York court rules for sanctioning lawyers. Many states that have adopted the Model Rules have deviated from its “model” text in significant ways. Sometimes a state will opt for language derived from a draft of the Model Rules. Sometimes a state will choose to retain language contained in the Model Code of Professional Responsibility. Some jurisdictions, like Virginia, have adopted some provisions of the Model Rules but have retained the Code’s format. We have identified interesting state variations on particular Model Rules in a section called “Selected State Variations” following each Model Rule. While we have presented variations from dozens of American jurisdictions, we have concentrated on these: Arizona, District of Columbia, Florida, Georgia, Illinois, Michigan, Missouri, New Jersey, North Carolina, Pennsylvania, Texas, and Virginia. Several areas in which we see significant variation among jurisdictions or between drafts of the Model Rules and the final document include conflicts of interest (Rules 1.7, 1.8, 1.9, 1.10, and 1.11); fairness to opposing parties and counsel (Rule 3.4); relationships between lawyers and nonlawyers (Rule 5.4); and pro bono service (Rule 6.1). Two dominant concerns underlie the provisions containing these variations. The first concern is the proper scope of the lawyer’s loyalty to current and former clients, including the scope of the lawyer’s duty to protect client confidences. Competing demands on this loyalty come from the justice system, third person, other clients, and the lawyer’s personal or financial interests. The second concern is competition, from within and from outside the profession, in marketing and profiting from legal services. One question is whether nonlawyers. One question is whether nonlawyers should be permitted to invest in or share profits from organizations that sell legal services for a profit. This question brings up competition between lawyers and persons outside the legal profession. Another question is what limits should be placed on the ways in which lawyers compete with other lawyers. This question addresses issues of lawyer advertising and solicitation. Recently, a tangential issue has emerged: Should lawyers be permitted to own “ancillary” non-law businesses (such as title insurance companies, investment advisors, and real estate developers) that serve both clients and non-clients? By a slim vote, the ABA said “no” when it adopted Rule 5.7 in 1991. But only a year later, again by a slim margin, the ABA reversed course and said “yes,” repealing Rule 5.7. The areas we have identified are, we believe, those where controversy was most prominent and variation among jurisdictions most frequent and pronounced. But other provisions of the Model Rules were also seriously debated and are also the subject of variation among the states. As we show in the Legislative History sections for each Model Rule, the Kutak Commission’s early drafts usually differed markedly from the Rules as finally adopted. And as we show in the Selected State Variations sections for each Model Rule, the states have often adopted divergent provisions. The legislative history and the selected state variations for each Rule, together with our extensive California and New York materials, should thus dispel any misconception that the ABA Model Rules are “the rules.” The Model Rules are influential, but they continue to generate considerable disagreement. To make it easier to roam within the Model Rules, each Rule is followed by a list of cross-references identifying every other Rule or Comment that mentions the annotated Rule. These cross-references should help readers appreciate each Rule’s implications throughout the Rules as a whole. The Model Rules are only one source of authority and guidance within the legal profession. As our Related Materials show, lawyers may be subject to many obligations and restrictions beyond those imposed by the Model Rules. In addition, the Model Rules give little or no guidance in many areas of practice. We have therefore included other sources of authority such as federal statutes and regulations, rules of evidence and procedure, the tentative Restatement of Law Governing Lawyers (still in progress), and recently emerging creeds of courtesy and professionalism. We have also reprinted all or significant parts of several specialized codes, such as the ABA Standards for Criminal Justice, the ABA Standards of Practice for Lawyer Mediators in Family Disputes, the Bounds of Advocacy of the American Academy of Matrimonial Lawyers (whose Reporter was Professor Robert Aronson of the University of Washington Law School), the Code of Conduct for Lawyers in the European Community, a statement of good practices for law professors from the Association of American Law Schools, the Ethical Standards of Professional Conduct of the Society of Professionals in Dispute Resolution, and the Federal Bar Association’s Model Rules of Professional Conduct for Lawyers. Finally, judges are subject to special regulations beyond those that govern practicing lawyers. Some of these are in statutory law, such as §455 of title 28 of the United States Code. Others are in codes of judicial ethics. The most prominent ethics code is the ABA’s Code of Judicial Conduct, first promulgated in 1972 and adopted by 47 states and the District of Columbia. In 1990 the ABA revised the Code of Judicial Conduct. Although the revised document has not yet seen significant adoption, we reprint it rather than its predecessor, because it addresses issues the earlier Code ignored. Part III of the Report of the ABA Standing Committee recommending the new Code highlights principal changes from the predecessor. We reprint this part of the Report so readers can readily identify the significant revisions. In sum, this book presents a wide range of statutes, rules, regulations, and model codes that govern lawyers and judges. We have aimed to make these materials accessible and understandable, and to give readers an appreciation for the rich and variegated landscape of the regulations of lawyers.

Publication Date

1993

Edition

4

Regulation of Lawyers: Statutes and Regulations

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