Lawyer Ethics Code Drafting in the Twenty-First Century

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In 1997, the American Bar Association ("ABA") created the Commission on the Evaluation of the Rules of Professional Conduct,' otherwise known as the Ethics 2000 Commission ("Commission"). 2 The Commission was charged with conducting a comprehensive review of the Model Rules of Professional Conduct ("Model Rules") to determine what changes were necessary to update the Model Rules and make them relevant to the practice of law in the twenty-first century? In August 2001, the Commission issued a 300-page report recommending numerous changes to the Rules.4 These recommendations have been considered by the ABA House of Delegates and were largely approved.5 As Chief Reporter to the Commission, I have had the privilege of participating in this recent effort to enact comprehensive revisions to the ABA's model ethics code. It has been a fascinating and educational experience for me, and I welcome the opportunity to reflect on what I have learned about ethics code drafting for lawyers in the twenty-first century.

Even before I became associated with the Commission, I published my views on the function of ethics codes in general and ethics codes for lawyers in particular.6 In my view, a profession's code of ethics is one aspect of a contract between society and the profession-a contract that results when society agrees to give the profession a legal monopoly in return for a promise that professional practice will be performed in the public interest Under this contract account, a professional code of ethics serves both ideological and regulative functions." As ideology, a code establishes standards by which the profession (and the professional) can be held to public account.9 In other words, society has delegated responsibility to professions, but it can also relieve them of this responsibility if they do not live up to their public pronouncements.10 The regulatory function of codes is not limited to the use of coercive sanctions like attorney discipline, but also includes "both the 'internal sanction of professional conscience' and the 'informal external sanction of peer criticism' to promote compliance with professional norms" as part of the socialization of lawyers and other professionals."

Nothing in my experience with the Commission has changed these views. I continue to believe that the best explanation of the validity of professional codes is the contract account outlined above. Although I continue to believe that codes serve both ideological and regulatory functions, this Article will not discuss the ideological functions of ethics codes. 2 Nor will I comment in any detail on the substance of the various changes the Commission proposed. 3 Rather, my remarks will focus on the types of regulatory changes that the Commission thought were necessary in order to bring the Model Rules into the twenty-first century. Before I discuss the changes, however, I want to comment briefly on the significance of revising an existing code rather than creating an entirely new code, as was done both in 1969 with the ABA Model Code of Professional Responsibility4 ("Model Code") and again in 1983 with the Model Rules themselves. 5

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