Regulation of Lawyers: Statutes and Regulations with Recent Supreme Court Decisions
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Description
The purpose of this book is to make law school courses in professional responsibility more interesting. To accomplish this purpose, we have made this statutory supplement different from other available supplements for professional responsibility courses. This preface explains what makes our book different. The ABA Model Rules of Professional Conduct Many jurisdictions have now adopted the ABA Model Rules of Professional Conduct in some form, and most law schools make the Model Rules an important component of their professional responsibility courses. We have therefore concentrated on adding depth and perspective to the Model Rules. We have given them depth by providing internal cross-references, legislative histories, and interesting state variations after each Rule. We have put the Rules in perspective by citing or describing related authorities after each Rule. A quick glance at virtually any Model Rule will show how the features discussed below will enhance your understanding of the Model Rules. Cross-References in the Rules: After each Model Rule, we have quoted every cross-reference to that Rule appearing elsewhere within the text or comments to the Model Rules. These cross-references illustrate each Rule’s implications throughout the Rules as a whole. Legislative History: The Model Rules have a rich legislative history. Drafts were circulated to the bar in 1980, 1981, and 1982. Where these drafts differ significantly from a Rule as finally adopted, we have included them in a Legislative History section after each Rule. This legislative history will help students to understand the choices that the ABA made in adopting the Rules. State Variations: More than 35 jurisdictions have now adopted the Model Rules (or significant provisions from them) in some form, but there are notable variations among the jurisdictions, especially with respect to such crucial matters as conflicts and confidentiality. We have quoted interesting selections from various jurisdictions following each Rule. We have paid special attention to nine Rules jurisdictions and also to New York, which amended its version of the Code of Professional Responsibility in 1990, and to California, which has a unique set of rules and statutes. These state variations graphically illustrate the disagreements over how lawyers should conduct themselves and will provoke heated class discussions about the best way of treating particular issues. Related Materials: Law school courses in professional responsibility typically focus on the ABA Model Rules of Professional Conduct. Students therefore may not realize that there are also many other sources of guidance for lawyers. These other sources of guidance include statutes, cases, regulations, court rules, rules of evidence and procedure, and specialized or alternative codes of ethics. The Related Materials sections following each Model Rule call attention to many of these other sources. We have also reprinted many of them elsewhere in our book, including the ABA Standards for Criminal Justice, attorney-client privilege materials, a Code of Professional Responsibility for Matrimonial Lawyers, Standards of Practice for Lawyer Mediators in Family Disputes, ethical standards for neutrals in dispute resolution, a Code of Ethics for Arbitrators in Commercial Disputes, sanctions from the Federal Rules of Civil and Appellate Procedure, several creeds of courtesy and professionalism, and some 1989, 1990, and 1991 Supreme Court cases. In addition, our Related Materials sections quote many provisions from the American Lawyer’s Code of Conduct, which contains interesting alternative ideas, and from the old ABA Canons of Professional Ethics, which governed American lawyers from 1908 until 1970. Taken together, these related materials should impress upon students that ta state’s rules of professional conduct are but one of many sources that scholars and lawyers should research when deciding what is or should be required in a given situation. To put all of these materials in context, we have written brief introductions to each chapter of the book. We have also written an introductory essay giving an overview of the entire filed of regulation of lawyers, with special emphasis on the ABA Model Rules and Model Code, including their legislative history and the patterns in state variations. New York and California Materials In California, substantially revise Rules of Professional Conduct took effect on May 27, 1989. After each ABA Model Rule, our State Variations sections cite the comparable sections of the California rules of Professional Conduct and the California Business and Professions Code. Conversely, for each sections of the California Rules of Professional Conduct, we have cited comparable or related provisions in the ABA Model Rules, the California and Business Professions Code, and the old California Rules (which were in effect from 1975 until May 27, 1989). In New York, a substantially revised Code took effect on September 1, 1990. Our State Variations sections indicate whether New York’s new Code provisions differ in any significant way from the ABA Model Code of Professional Responsibility. Wherever New York’s comparable Code provision differs from the ABA Model Code, we have reprinted the New York provision in our New York materials. Some Changes in the 1992 Edition This edition of the book contains many changes that will make it more useful. Among them are: Expanded comparative coverage by highlighting significant differences in ethics rules in nine jurisdictions in addition to the comprehensive treatment of rules in California and New York. New ABA Rule 5.7, amended Rule 8.3(c), can excepts from corresponding Committee Reports. The Model Rules of Professional Conduct for Federal Lawyers, adopted by the Federal Bar Association in 1990 to replace the Federal Ethical Considerations. Significant provisions appear under Related Materials to the Model Rules. The 1990 and 1991 changes in Chapters 4, 5, and 8 of the ABA Standards for Criminal Justice. Provisions from drafts of the ALI’s Restatement of the Law Governing Lawyers, contained in the Related Materials sections under the Model Rules. The Restatement’s attorney-client privilege rules appear at pages 536-541. Proposed amendments to the California Rules of Professional Conduct. Of particular interest is a proposed new rule on sexual relations between lawyers and clients that would be the first of its kind in the nations. The ABA Canons of Professional Ethics, which are found in the Related Materials. A new table cross-references them to the Model Rules. Our Theme throughout the volume, our theme is simple: The ABA Model Rules are an important voice in the legal profession—but they are only one voice. The drafts, the state variations, and other sources show that there are other ways of addressing issues. Moreover, sometimes the Model Rules resolve only a few of the questions in the areas they cover, leaving many other questions wholly unaddressed. The job of the legal profession is to debate and determine the best possible standards for each facet of legal practice. By setting forth a wide variety of materials, and making them accessible through cross-references, we hope to help move the profession toward that goal.
Publication Date
1992
Edition
3
Recommended Citation
Gillers, Stephen and Simon, Roy D. Jr., "Regulation of Lawyers: Statutes and Regulations with Recent Supreme Court Decisions" (1992). Faculty Books & Edited Works. 326.
https://gretchen.law.nyu.edu/fac-books-edited-works/326
