Commission on Evaluation
of the Rules of Professional Conduct
("Ethics 2000")
CHAIR'S INTRODUCTION
In mid-1997, ABA President
Jerome J. Shestack, his immediate predecessor, N. Lee Cooper,
and his successor, Philip S. Anderson had the vision to
establish the "Ethics 2000" Commission. These three leaders
persuaded the ABA Board of Governors that the Model Rules
adopted by the ABA House of Delegates in 1983 needed comprehensive
review and some revision, and this project was launched.
Though some might have thought it premature to reopen the
Model Rules to such a rigorous general reassessment after
only 14 years, the evaluation process has proven that the
ABA leadership was correct.
One of the primary reasons
behind the decision to revisit the Model Rules was the growing
disparity in state ethics codes. While a large majority
of states and the District of Columbia had adopted some
version of the Model Rules (then 39, now 42), there were
many significant differences among the state versions that
resulted in an undesirable lack of uniformity - a problem
that had been exacerbated by the approximately 30 amendments
to the Model Rules between 1983 and 1997. A few states had
elected to retain some version of the 1969 Model Code of
Professional Responsibility, and California remained committed
to an entirely separate system of lawyer regulation.
But it was not only the
patchwork pattern of state regulation that motivated the
ABA leaders of 1997 to take this action. There were also
new issues and questions raised by the influence that technological
developments were having on the delivery of legal services.
The explosive dynamics of modern law practice and the anticipated
developments in the future of the legal profession lent
a sense of urgency as well as a substantive dimension to
the project. These developments were underscored by the
work then underway on the American Law Institute’s Restatement
of the Law Governing Lawyers.
There was also a strong
countervailing sense that there was much to be valued in
the existing concepts and articulation of the Model Rules.
The Commission concluded early on that these valuable aspects
of the Rules should not be lost or put at risk in our revision
effort. As a result, the Commission set about to be comprehensive,
but at the same time conservative, and to recommend change
only where necessary. In balancing the need to preserve
the good with the need for improvement, we were mindful
of Thomas Jefferson's words of nearly 185 years ago, in
a letter concerning the Virginia Constitution, that "moderate
imperfections had better be borne with; because, when once
known, we accommodate ourselves to them, and find practical
means of correcting their ill effects."
Thus, we retained the basic
architecture of the Model Rules. We also retained the primary
disciplinary function of the Rules, resisting the temptation
to preach aspirationally about "best practices" or professionalism
concepts. Valuable as the profession might find such guidance,
it would not have - and should not be misperceived as having
- a regulatory dimension. We were, however, always conscious
of the educational role of the Model Rules. Finally, we
tried to keep our changes to a minimum: when a particular
provision was found not to be "broken" we did not try to
"fix" it. Even so, as the reader will note, the Commission
ended up making a large number of changes: some are relatively
innocuous and nonsubstantive, in the nature of editorial
or stylistic changes; others are substantive but not particularly
controversial; and a few are both substantive and controversial.
The deliberations of the
Commission did not take place in a vacuum and our determinations
are not being pronounced ex cathedra. Rather, they
are products of thorough research, scholarly analysis and
thoughtful consideration. Of equal importance, they have
been influenced by the views of practitioners, scholars,
other members of the legal profession and the public. All
these constituencies have had continual access to and considerable
- and proper - influence upon the deliberations of the Commission
throughout this process.
I must pause to underscore
the openness of our process. We held over 50 days of meetings,
all of which were open, and 10 public hearings at regular
intervals over a four and one-half year period. There were
a large number of interested observers at our meetings,
many of whom were members of our Advisory Council of 250-plus
persons, to offer comments and suggestions. Those observations
were very helpful and influential in shaping the Report.
Our public discussion drafts, minutes and report were available
on our website for the world to see and comment upon. As
a consequence, we received an enormous number of excellent
comments and suggestions, many of which were adopted in
the formulation of our report.
Moreover, we encouraged
state and local bar associations, ABA sections and divisions,
other professional organizations and the judiciary to appoint
specially designated committees to work with and counsel
the Commission. This effort was successful, and the Commission
benefitted significantly from the considered views of these
groups.
In heeding the counsel of
these advisors, we were constantly mindful of substantial
and high-velocity changes in the legal profession, particularly
over the past decade. These changes have been highlighted
by increased public scrutiny of lawyers and an awareness
of their influential role in the formation and implementation
of public policy; persistent concerns about lawyer honesty,
candor and civility; external competitive and technological
pressures on the legal profession; internal pressures on
law-firm organization and management raised by sheer size,
as well as specialization and lawyer mobility; jurisdictional
and governance issues such as multidisciplinary and multijurisdictional
practice; special concerns of lawyers in nontraditional
practice settings, such as government lawyers and in-house
counsel; and the need to enhance public trust and confidence
in the legal profession.
At the end of the day, our
goal was to develop a set of Rules that are comprehensible
to the public and provide clear guidance to the practitioner.
Our desire was to preserve all that is valuable and enduring
about the existing Model Rules, while at the same time adapting
them to the realities of modern law practice and the limits
of professional discipline. We believe our product is a
balanced blend of traditional precepts and forward-looking
provisions that are responsive to modern developments. Our
process has been thorough, painstaking, open, scholarly,
objective and collegial.
It is impossible
here to go into detail about the changes proposed by the
Commission. The changes recommended by the Commission clarified
and strengthened a lawyer's duty to communicate with the
client; clarified and strengthened a lawyer's duty to clients
in certain specific problem areas; responded to the changing
organization and structure of modern law practice; responded
to new issues and questions raised by the influence that
technological developments are having on the delivery of
legal services; clarified existing rules to provide better
guidance and explanation to lawyers; clarified and strengthened
a lawyer's obligations to the tribunal and to the justice
system; responded to the need for changes in the delivery
of legal services to low and middle income persons; and
increased protection of third parties.
The ABA House of Delegates
began consideration of the Commission's Report at the August
2001 Annual Meeting in Chicago and completed its review
at the February 2002 Midyear Meeting in Philadelphia. At
the August 2002 Annual Meeting in Washington, D.C., the
ABA House of Delegates considered and adopted additional
amendments to the Model Rules sponsored by the ABA Commission
on Multijurisdictional Practice and the ABA Standing Committee
on Ethics and Professional Responsibility. As state supreme
courts consider implementation of these newly revised rules,
it is our fervent hope that the goal of uniformity will
be the guiding beacon.
In closing, the Commission
expresses its gratitude to the law firm of Drinker Biddle
& Reath, whose generous contribution helped make possible
the continued, invaluable support of the Commission's Chief
Reporter. I also want to express personally my gratitude
to and admiration for my colleagues. The chemistry, good
will, good humor, serious purpose, collegiality and hard
work of the Commission members, Reporters and ABA staff
has been extraordinary. The profession and the public have
been enriched beyond measure by their efforts. It has been
a pleasure and a privilege for me to work with all of them.
E. Norman Veasey
August 2002
Preface
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Introduction | Table of Contents
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