Jan 3, 2012
Considering the future of legal ethics
The American Bar Association, spurred by globalization and technology, has been holding hearings on potential changes to the legal ethics rules that could affect the practice of law far into the next century.
Naturally, any changes to the ethics and professionalism rules will have more of an impact on younger attorneys. It is important, then, that we weigh in before we’re saddled with vague or Luddite-inspired rules that may be interpreted by a judiciary with the “technological heebie-jeebies.”
Historically, the ABA and Maryland have had an important role in the development of legal ethics. Today’s rules date back to 1836 and Maryland law school Professor David Hoffman’s “A Course of Legal Study 2nd ed.” This book paved the way for state bar associations that promulgated ethics rules for lawyers with enforcement mechanisms.
Alabama’s 1887 “Code of Ethics” served as a model for other states, including Maryland and the ABA. In 1908 the ABA adopted an aspirational “Canons of Professional Ethics” that was replaced by the “Model Code of Professional Responsibility” in 1970. Later, in 1983, the “Code” was replaced by the ABA’s “Model Rules of Professional Conduct” (MRPC), modeled today by Maryland and many other states.
In Maryland, the Court of Appeals’ Standing Committee on Rules of Practice and Procedure now considers and recommends changes to the state’s rules and gives considerable weight to ABA policy, often adopting them verbatim.
The ABA Commission on Ethics 20/20 was created to “perform a thorough review of the MRPC and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments.”
Among the issues being addressed by the commission are outsourcing (e.g., use of contract attorneys), lawyers’ use of Internet-based client development tools (e.g., Facebook and Twitter), and client confidentiality (e.g., usage of cloud computing) and law firm ownership by other service professionals.
The commission’s process is culminating in a number of policy proposals in August. Anything passed through the ABA’s House of Delegates will surely find its way to Annapolis for strong consideration. Therefore, the time for comment is now.
The commission is accepting comments on these proposals and is holding a public hearing Feb. 2 at the ABA’s midyear meeting. To learn more about the commission’s work, take a look at the Ethics 20/20 site and the ABA Young Lawyers Division’ ethics and professionalism site.
What do you think about these proposals?
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I realize that it is popular wisdom in Maryland to believe that David Hoffman’s “Course of Legal Study” is the wellspring of legal ethics rules in this Country, but the unfortunate truth is that the view of ethics embodied in Hoffman’s tract lost out to the view expressed in George Sharswood’s “Essay on Professional Ethics” in the construction of the Alabama Code, the first ethics code in the Country, and the Alabama Code was the model for the first ABA Code. Hoffman wrote about twenty years earlier than Sharswood, it is true, but Sharswood’s view was more persuasive to lawyers generally, just as Sharswood was the more distinguished and respected thinker. The story of the origins of the ABA Code is available in many places (though not on the University of Maryland Law School website), but perhaps the most sophisticated and detailed telling of it is in Russell Pearce, “Rediscovering the Republican Origins of the Legal Ethics Codes,” 6 Georgetown J. of Legal Ethics 241 (1992). You could read it on your smartphone.
The opening sentence in your post, in particular the warning that the “American Bar Association . . . hearings on . . . changes to the legal ethics rules . . . could affect the practice of law far into the next century,” is as silly as the equivalent claims made by outraged members of the Bar in 1908 about the passage of the original ABA Code (many of which are quite funny, in retrospect). That Code stopped being of any continuing substantive influence more than half a century ago and the changes presently being debated by the ABA are likely to have a much shorter shelf life.
You should be more concerned about ignorant newbies who don’t know history than “luddite-inspired rules” and judges with “technological heebie-jeebies.” Mindlessness has always been a bigger threat to any kind of social organization than lack of technological glitz.