American Bar Association Model Rules of Professional Conduct
Encyclopedia
The ABA Model Rules of Professional Conduct, created by the American Bar Association
(ABA), are a set of rules that prescribe baseline standards of legal ethics
and professional responsibility
for lawyer
s in the United States
. They were promulgated by the ABA House of Delegates upon the recommendation of the Kutak Commission in 1983. The rules are merely recommendations, or models, (hence the name "Model Rules") and are not themselves binding. However, having a common set of Model Rules facilitates a common discourse on legal ethics, and simplifies professional responsibility training as well as the day-to-day application of such rules. As of 2009, 49 U.S. state
s have adopted the rules in whole or in part, of which the most recent to do so was Maine
.
without lawmaking power (meaning that it is just like any other nongovernmental professional association). Accordingly, the Model Rules are not legally binding in and of themselves. However, they have been adopted, in whole or in part, as the professional standards of conduct by the judiciaries or integrated bar associations of 49 U.S. states. Rules adopted in a particular state (that may be based upon the Model Rules) are legally enforceable against the lawyers of that state as well as any lawyer practicing there temporarily on a pro hac vice
basis.
On December 17, 2008, New York announced that it would finally abandon the old Model Code
(it was the last state to do so) and adopt a heavily modified version of the Model Rules, effective April 1, 2009. In June 2009, the Supreme Court of Maine approved the adoption of the Model Rules in that state, effective August 1, 2009.
California
has its own set of unique professional responsibility rules. California rules differ significantly from the ABA rules in structure and content. Besides the obvious transactional costs incurred in retraining thousands of attorneys (there are over 210,000 attorneys in California), another reason for not adopting the ABA rules is that they conflict with the fundamental public policy
of the state.
For example, the State Bar of California
and the California State Legislature
have long taken the position that clients must be encouraged to speak candidly to their counsel about both past and future actions knowing their statements will be held in complete confidence. Then their counsel can explain the relevant law to them and urge them to conform their future conduct to the law, thus promoting lawful conduct. In contrast, Model Rule 1.6 contains exceptions to confidentiality
for both violent and nonviolent (e.g. financial) future crimes, which in turn creates a strong disincentive for clients to discuss their plans with their lawyers. In turn, clients may end up proceeding in total ignorance of the relevant law (and violate it as a result).
Another notable difference is that Model Rule 1.8(j) contains an outright ban on sexual relations
between lawyer and client (unless the relationship predated the legal representation), while California Rule 3-120 only prohibits sex under certain circumstances, such as where coercion
or prostitution
is involved or when it causes the attorney "to perform legal services incompetently."
Since 2001, the Commission for the Revision of the Rules of Professional Conduct of the State Bar of California has been attempting a comprehensive revision of the California rules that would, among other things, convert them into a localized version of the Model Rules. However, the Commission's progress has been extremely slow, simply because there are so many substantive and structural differences between the California rules and the Model Rules.
and self-policing
organization. Lawyers control the regulatory institutions that control lawyers, and such institutions are subject to supervision by the judiciary
, which itself consists of lawyers who became judges. In contrast, many other professions, such as medicine, are controlled by executive branch disciplinary bodies that have many members who come from outside such professions, and who may have been appointed by the governor of the state, who is not necessarily a member of those professions.
The concept of the self-regulating profession has repeatedly been attacked as ineffective in controlling unethical or incompetent lawyers, especially after the Watergate scandal
. The Model Rules were specifically formulated by the ABA's Kutak Commission after Watergate to demonstrate that the American legal profession was capable of regulating itself and to alleviate demands that lawyer regulation be centralized into federal or state agencies directly accountable to the public.
American Bar Association
The American Bar Association , founded August 21, 1878, is a voluntary bar association of lawyers and law students, which is not specific to any jurisdiction in the United States. The ABA's most important stated activities are the setting of academic standards for law schools, and the formulation...
(ABA), are a set of rules that prescribe baseline standards of legal ethics
Legal ethics
Legal ethics encompasses an ethical code governing the conduct of persons engaged in the practice of law and persons more generally in the legal sector.-In the United States:...
and professional responsibility
Professional responsibility
Professional responsibility is the area of legal practice that encompasses the duties of attorneys to act in a professional manner, obey the law, avoid conflicts of interest, and put the interests of clients ahead of their own interests....
for lawyer
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
s in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
. They were promulgated by the ABA House of Delegates upon the recommendation of the Kutak Commission in 1983. The rules are merely recommendations, or models, (hence the name "Model Rules") and are not themselves binding. However, having a common set of Model Rules facilitates a common discourse on legal ethics, and simplifies professional responsibility training as well as the day-to-day application of such rules. As of 2009, 49 U.S. state
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
s have adopted the rules in whole or in part, of which the most recent to do so was Maine
Maine
Maine is a state in the New England region of the northeastern United States, bordered by the Atlantic Ocean to the east and south, New Hampshire to the west, and the Canadian provinces of Quebec to the northwest and New Brunswick to the northeast. Maine is both the northernmost and easternmost...
.
State adoptions of the Rules
The ABA is a voluntary bar associationBar association
A bar association is a professional body of lawyers. Some bar associations are responsible for the regulation of the legal profession in their jurisdiction; others are professional organizations dedicated to serving their members; in many cases, they are both...
without lawmaking power (meaning that it is just like any other nongovernmental professional association). Accordingly, the Model Rules are not legally binding in and of themselves. However, they have been adopted, in whole or in part, as the professional standards of conduct by the judiciaries or integrated bar associations of 49 U.S. states. Rules adopted in a particular state (that may be based upon the Model Rules) are legally enforceable against the lawyers of that state as well as any lawyer practicing there temporarily on a pro hac vice
Pro hac vice
Pro hac vice , Latin: "for this occasion" or "for this event", is a legal term usually referring to a lawyer who has not been admitted to practice in a certain jurisdiction but has been allowed to participate in a particular case in that jurisdiction.The right to appear pro hac vice is not...
basis.
On December 17, 2008, New York announced that it would finally abandon the old Model Code
American Bar Association Model Code of Professional Responsibility
The American Bar Association Model Code of Professional Responsibility, created by the American Bar Association in 1969, was a set of professional standards designed to establish the minimum baseline of legal ethics and professional responsibility generally required of lawyers in the United...
(it was the last state to do so) and adopt a heavily modified version of the Model Rules, effective April 1, 2009. In June 2009, the Supreme Court of Maine approved the adoption of the Model Rules in that state, effective August 1, 2009.
California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
has its own set of unique professional responsibility rules. California rules differ significantly from the ABA rules in structure and content. Besides the obvious transactional costs incurred in retraining thousands of attorneys (there are over 210,000 attorneys in California), another reason for not adopting the ABA rules is that they conflict with the fundamental public policy
Public policy
Public policy as government action is generally the principled guide to action taken by the administrative or executive branches of the state with regard to a class of issues in a manner consistent with law and institutional customs. In general, the foundation is the pertinent national and...
of the state.
For example, the State Bar of California
State Bar of California
The State Bar of California is California's official bar association. It is responsible for managing the admission of lawyers to the practice of law, investigating complaints of professional misconduct, and prescribing appropriate discipline...
and the California State Legislature
California State Legislature
The California State Legislature is the state legislature of the U.S. state of California. It is a bicameral body consisting of the lower house, the California State Assembly, with 80 members, and the upper house, the California State Senate, with 40 members...
have long taken the position that clients must be encouraged to speak candidly to their counsel about both past and future actions knowing their statements will be held in complete confidence. Then their counsel can explain the relevant law to them and urge them to conform their future conduct to the law, thus promoting lawful conduct. In contrast, Model Rule 1.6 contains exceptions to confidentiality
Confidentiality
Confidentiality is an ethical principle associated with several professions . In ethics, and in law and alternative forms of legal resolution such as mediation, some types of communication between a person and one of these professionals are "privileged" and may not be discussed or divulged to...
for both violent and nonviolent (e.g. financial) future crimes, which in turn creates a strong disincentive for clients to discuss their plans with their lawyers. In turn, clients may end up proceeding in total ignorance of the relevant law (and violate it as a result).
Another notable difference is that Model Rule 1.8(j) contains an outright ban on sexual relations
Sexual intercourse
Sexual intercourse, also known as copulation or coitus, commonly refers to the act in which a male's penis enters a female's vagina for the purposes of sexual pleasure or reproduction. The entities may be of opposite sexes, or they may be hermaphroditic, as is the case with snails...
between lawyer and client (unless the relationship predated the legal representation), while California Rule 3-120 only prohibits sex under certain circumstances, such as where coercion
Coercion
Coercion is the practice of forcing another party to behave in an involuntary manner by use of threats or intimidation or some other form of pressure or force. In law, coercion is codified as the duress crime. Such actions are used as leverage, to force the victim to act in the desired way...
or prostitution
Prostitution
Prostitution is the act or practice of providing sexual services to another person in return for payment. The person who receives payment for sexual services is called a prostitute and the person who receives such services is known by a multitude of terms, including a "john". Prostitution is one of...
is involved or when it causes the attorney "to perform legal services incompetently."
Since 2001, the Commission for the Revision of the Rules of Professional Conduct of the State Bar of California has been attempting a comprehensive revision of the California rules that would, among other things, convert them into a localized version of the Model Rules. However, the Commission's progress has been extremely slow, simply because there are so many substantive and structural differences between the California rules and the Model Rules.
Self-governing body
Generally, the legal profession in the United States is a self-regulatingSelf-regulatory organization
A self-regulatory organization is an organization that exercises some degree of regulatory authority over an industry or profession. The regulatory authority could be applied in addition to some form of government regulation, or it could fill the vacuum of an absence of government oversight and...
and self-policing
Self-policing
Self-policing, a form of self-regulation, is the process whereby an organization is asked, or volunteers, to monitor its own adherence to legal, ethical, or safety standards, rather than have an outside, independent agency such as a governmental entity monitor and enforce those standards.-To the...
organization. Lawyers control the regulatory institutions that control lawyers, and such institutions are subject to supervision by the judiciary
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
, which itself consists of lawyers who became judges. In contrast, many other professions, such as medicine, are controlled by executive branch disciplinary bodies that have many members who come from outside such professions, and who may have been appointed by the governor of the state, who is not necessarily a member of those professions.
The concept of the self-regulating profession has repeatedly been attacked as ineffective in controlling unethical or incompetent lawyers, especially after the Watergate scandal
Watergate scandal
The Watergate scandal was a political scandal during the 1970s in the United States resulting from the break-in of the Democratic National Committee headquarters at the Watergate office complex in Washington, D.C., and the Nixon administration's attempted cover-up of its involvement...
. The Model Rules were specifically formulated by the ABA's Kutak Commission after Watergate to demonstrate that the American legal profession was capable of regulating itself and to alleviate demands that lawyer regulation be centralized into federal or state agencies directly accountable to the public.
See also
- American Bar Association Model Code of Professional ResponsibilityAmerican Bar Association Model Code of Professional ResponsibilityThe American Bar Association Model Code of Professional Responsibility, created by the American Bar Association in 1969, was a set of professional standards designed to establish the minimum baseline of legal ethics and professional responsibility generally required of lawyers in the United...
- American Bar AssociationAmerican Bar AssociationThe American Bar Association , founded August 21, 1878, is a voluntary bar association of lawyers and law students, which is not specific to any jurisdiction in the United States. The ABA's most important stated activities are the setting of academic standards for law schools, and the formulation...