The Complexities of Lawyer Ethics Code Drafting: The Contributions of Professor Fred Zacharias

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When I was asked to contribute to this special issue of the San Diego Law Review honoring Fred Zacharias, I knew immediately that I would write about ethics code drafting, a subject addressed by Professor Zacharias in many of his writings.' I had published an article in 2002 entitled Lawyer Ethics Code Drafting in the Twenty-First Century, in which I reflected on my experience as Chief Reporter to the American Bar Association's (ABA) Commission on the Evaluation of the Rules of Professional Conduct (Commission), better known as the Ethics 2000 Commission or simply E2K. In reviewing both my 2002 article and Professor Zacharias's scholarship, I observed that Professor Zacharias and I touched upon many of the same themes. Nevertheless, I was struck by the extent to which Professor Zacharias systematically explored the various aspects and the complexity of modern ethics codes.

The role of the E2K reporters was significantly constrained because the Commission had decided early on that, rather than drafting an entirely new ethics code as the Wright Committee did with the 1969 Code of Professional Responsibility and the Kutak Commission did with the 1983 Model Rules, it would seek merely to amend the Model Rules of Professional Conduct (Model Rules) to bring them into the twentyfirst century.3 Nevertheless, because it was building on a solid foundation of existing rules, the Commission had an opportunity, as I described it in my 2002 article, to "reflect more deeply on the special and evolving nature of lawyer ethics codes.'A In particular, I identified and discussed three aspects of the broader picture that the Commission had addressed: (1) it considered, and rejected, a proposal to make the ethics code "more 'ethical'-rather than strictly 'legal'-by incorporating some form of 'best practices' or 'professionalism' concepts";' (2) it acknowledged that the role of the ethics code was broader than its narrow disciplinary function, expanding it to provide "greater guidance for lawyers, thus enhancing the likelihood of compliance with the Rules as professionalism norms";6 and (3) it struggled "with the tension between specificity and generality in rule drafting," opting sometimes for specificity to provide clarity and notice and other times for generality, to provide flexibility in addressing a variety of individual circumstances.7

In this essay, I return to these three aspects of the special and evolving nature of lawyer ethics codes in order to acknowledge the important contributions of Professor Zacharias. As I hope to show, Professor Zacharias's publications present a far more complex and nuanced view of the task of drafting lawyer ethics codes than either the Commission or I had contemplated. Although there was not much time then to further address these more theoretical concerns, I am confident that we would have benefitted enormously from a deeper exploration of his scholarship in this area.

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