Should California adopt the ABA Model Rules of
Professional Conduct? Law practice has become nationwide in scope, and some believe the
time is ripe for California to adopt the model rules.
A uniform ethics code would conform appropriate practice throughout the
country, and could improve the administration of justice in a number of ways.
Practice efficiency would increase where lawyers did not have to
research and conform to multiple ethics codes. Courts could require, and expect, the same
ethical practice from all lawyers. Teaching legal ethics would be far easier than at
present, and lawyers would better retain uniform rules that were consistently reinforced.
A uniform standard would also help pave the way for reciprocal, or national, admission of
lawyers.
If all this sounds too frighteningly federalist, don’t worry! A
national, uniform ethics code for lawyers is not about to happen soon. Although every
state except California has adopted some form of the current ABA Model Rules (or the
predecessor ABA Disciplinary Rules), variations in disciplinary standards abound from
state to state. Each state stamps its own brand upon local ethics rules, in large part as
a proud display of state sovereignty over the practice of law. No state can be expected
relinquish that sovereignty lightly.
 However,
as many believe that a national, uniform ethics code is manifest destiny, there is
increasing interest in getting California on board with the ABA rules. Califor-nia’s
adoption of the model rules is necessary to, and would clearly facilitate, a national
standard. But will it ever happen?
Speaking confidentially, I don’t think so. Why? Because of the
profound differences between California and the ABA regarding a lawyer’s ethical duty
of confidentiality. Without going into the arcane and gritty details, the ABA rules allow
a lawyer to disclose client confidences to a much greater extent than the California
rules. Heretofore, California has considered and expressly rejected many grounds for
disclosure that are found in the current ABA rules.
California and ABA confidentiality standards are expected to diverge
even further in the future. Currently, the
ABA Ethics 2000 Commission is revising the ABA rules, and is proposing a substantial
expansion of the grounds for disclosure of confidential client information.
Public comment submitted by the California State Bar and the
California ethics community shows that at present California is committed to preserving
client confidentiality to a degree that conflicts with both the current and proposed
revised ABA confidentiality standards.
The California and ABA confidentiality standards reflect a
fundamental divergence in view. While both
sets of rules are intended to effectuate the fair administration of justice, the
California rules are designed to preserve and promote the sanctity of the lawyer-client
relationship, while the ABA rules are designed to preserve and protect the judicial and
legal process against client subterfuge.
Both sets of rules balance these noble objectives, but the balance
falls differently, resulting in divergent standards. Reasonable minds can disagree on
which set of rules best achieves the proper and fair administration of justice.
If the disclosure expansions proposed by the Ethics 2000 Commission
are adopted by the ABA, I believe that California will become even less inclined to adopt
the ABA Model Rules. California’s strict confidentiality standards have been
examined, debated and challenged actively over the past 20 years, but have remained
essentially unchanged.
As such, I do not see California loosening its confidentiality
standards in the near future, either on its own accord or in response to ABA overtures.
In my opinion, California should not change its well-thought-out
confidentiality standards without serious and substantial consideration. While relaxed
confidentiality standards may better protect the justice system against client subterfuge,
relaxed standards will erode the sanctity and effectiveness of the lawyer-client
relationship. California should not jettison its principled position on client
confidentiality merely to achieve national uniformity.
 Ethics expert David M.M.
Bell, now in private practice, formerly ran the State Bar’s Ethics Hotline. He may be
reached at dmbell@dnai.com.
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