|Since late 1997, the ABA, through its Ethics 2000 Commission, has been
evaluating its model rules of professional conduct. It is drafting proposed revisions and
considering new rules in light of changes in the practice of law, including new forms of
technology, public perceptions, interstate and international practice, multidisciplinary
partnerships, alternative dispute resolution and increased mobility and specialization.
This undertaking was prompted in
part by variations in the model rules as they have been adopted by the states and the
soon-to-be published Restatement of the Law Governing Lawyers - a 10-year project of the
American Law Institute.
California has the distinction of being the only state with its own, and in some ways
unique, set of rules of professional conduct.
The commission's work plan calls for a final report of its revisions to the model rules
to be submitted to the ABA House of Delegates by July 2000. This deadline does not allow
for much dialog - particularly from outsiders - on the policies underlying the existing
rules and the ethical principles reflective of the needs of the public and the judicial
system going forward.
The 10-member commission is proceeding on three separate tracks simultaneously. It is
nearing completion of its work on certain fundamental rules addressed in "track
one," including confidentiality of information and conflicts of interest.
Activities grouped in the other two tracks include subjects such as duties to
prospective clients, accounting, conflict check and docket management systems, law firm
discipline, lawyers representing fiduciaries, lawyers serving as dispute resolution
neutrals and technology.
Although the commission has announced it is taking a "minimalist" approach,
many of the proposed changes are significant and, if adopted, would reflect an even
greater departure from the rules in California.
California's ethics community has been active in attempting to follow the work of the
Ethics 2000 Commission, recognizing that California will most likely engage in its own
rule review following completion of the ABA rules amendment process. Detailed statements
have been submitted by various bar groups on proposed revisions to six model rules.
Beyond the proposed rule amendments themselves, the activities of the ABA Ethics 2000
Commission raise important issues that deserve our attention now rather than after the
House of Delegates votes on the commission's report. Among these issues is whether there
is a need for a more uniform code of conduct to govern lawyers in light of the increasing
number of lawyers practicing in multiple jurisdictions. Could a natoinal code be
enforceable - particularly in light of the fact that in most jurisdictions, including
California, the ultimate authority over attorneys rests with the state's highest court?
Should the ABA Model Rules set minimum disciplinary standards, as in the case of
California's rules, or should the ABA follow the American Law Institute approach and
broaden the scope of the rules? Should the rules create a distinction between disciplinary
rules and aspirational standards, as is the case in the older ABA Model Code on
Should California continue to go its own way? Do the principles underlying our current
rules remain valid in light of competition within and from outside the profession? If
California continues to adhere to its disciplinary model for rules of professional
conduct, will it be perceived as attempting to "balkanize" the practice of law?
Whether California will be able to remain ahead of the curve remains to be seen, but we
should at least try to keep up with the ABA's ambitious undertaking by studying the
proposed rules soon to be circulated for public comment. It is important that California,
in which more than 165,000 attorneys practice, be heard by the ABA effectively.
Mark L. Tuft chairs the Bar Association of San
Francisco study group on ABA Ethics 2000, is a former chair and special advisor of the
State Bar Committee on Professional Responsibility and Conduct and is a co-author of the
California Practice Guide on Professional Responsibility (The Rutter Group 1997).