The Incompleteness of the Model Rules and the Development of Professional Standards

Abstract

"The ABA Model Rules of Professional Conduct and the Restatement of the Law Governing Lawyers are similar in two respects regarding professional conduct. Both contain detailed rules and both are comprehensive, covering relationships between lawyers and their clients, the courts, and third parties. Standards prepared by other organizations, however, have taken a narrower approach. Some have focused on particular activities performed by lawyers, while others have focused on specialized areas of practice. Another aspect of the standards movement is the emphasis on professionalism, in which state and local bar associations have adopted codes. What is one to make of this plethora of standards? Do they represent simply a hodgepodge of issuances by different organizations, each with its own views on lawyers' ethics, or is there some pattern to these efforts? Because the production of standards seems to be increasing, how are we to evaluate each newly introduced set of standards? Are there any general principles that organizations should take into account in preparing standards? This article argues that the standards movement can be understood by focusing on the characteristics of the Model Rules of Professional Conduct, the basic source or lawyers' ethical obligations. The drafters of the Model Rules created a document that has significant limitations and, as a result, cannot serve as a comprehensive statement of lawyers' obligations. The various standards produced by other organizations respond to one or more of the limitations of the Model Rules. Because the Model Rules are regulatory while other standards are voluntary, it is possible to derive several principles that can guide the work of drafters. First, standards should be consistent with the Model Rules unless there are strong reasons to deviate from the Model Rules and clear warnings of the deviation are given. Second, standard should provide detailed supplementation rather than mere repetition of the Model Rules. Third, drafters should develop an action plan to make voluntary standards influential."