Professional Responsibility

The public and the legal profession have long sought to prescribe ethical conduct for lawyers. Legal advocates existed in Greece as early as the fourth century B.C., and in first-century Rome, legal advisers and advocates began to play an active role in the formulation of systematized courts and the conduct of court operatives.

Advances in legal ethics made by legal advocates in Rome disappeared with the fall of the Holy Roman Empire and the onset of the medieval period in Europe. Legal conduct came under some scrutiny again in the twelfth century in Europe's emerging schools and universities, after William the Conqueror developed England's organized courts and jury trials. However, the ruling class dominated these medieval courts, and legal ethics remained more theoretical than practical long past the medieval period.

The emergence of ethical standards for lawyers in colonial America was gradual and local. Most colonies discouraged, and some colonies expressly prohibited, the practice of remunerated LEGAL REPRESENTATION. Self-representation was the norm, and this obviated the need for a code of professional conduct.

The U.S. Constitution was an important source for the eventual formation of ethical codes for lawyers and judges. Article III of the Constitution contains substantive rules relating to law and the courts, and it establishes the judiciary as an independent government power designed to check the executive and legislative branches. In addition, many of the Constitution's amendments address specific legal processes. The SIXTH AMENDMENT, for example, sets forth general rules in criminal cases, such as the requirement of representation for defendants in criminal prosecution.

Professional associations and ethical codes for lawyers and judges began to appear in the United States in the early 1800s. States formed bar associations in the early 1800s to organize and facilitate the legal profession. The state bar associations influenced the U.S. legal system in a variety of ways and exerted control over its important players by regulating the public and private conduct of lawyers and judges.

When the U.S. CIVIL WAR ended in 1865, lawyers flooded the Southern states to take part in Reconstruction. The questionable ethics and aggressiveness of some of these lawyers caused Southern legislators to call for the regulation of lawyers. In 1887, the Alabama Bar Association adopted the first comprehensive code of ethics. Other states followed suit.

The American Bar Association was formed in Saratoga, New York, on August 21, 1878, by a group of 289 lawyers. For many years the ABA examined and debated the various state codes of ethics and, in 1908, adopted and promoted the Canons of Professional Ethics. The 32 canons were intended to be model rules that states could adopt as regulations of legal conduct. Courts or legislatures in most states adopted this first set of standards. However, legal professionals criticized the canons as being incoherent and incomplete, and the ABA replaced them in 1969 with the Model Code of Professional Responsibility.

The model code was also criticized. An amalgam of general canons, aspirational ethical considerations, and disciplinary rules, it was sometimes contradictory and often perplexing. In 1983, the ABA replaced the code with the Model Rules of Professional Conduct. The model rules consist only of enforceable rules and explanatory comments. The ABA periodically amends the model rules to make adjustments for evolving norms and changes in technology. Most states have adopted the ABA Model Rules of 1983. States that have not adopted the ABA Model Rules use the ABA Model Code of Professional Responsibility of 1969 and supply their own changes.

In 1998, the American Law Institute approved the Restatement of the Law Governing Lawyers. This project began in 1986 as an effort to address constraints imposed upon lawyers by law. This restatement does not constitute authority in any state, but rather is designed to assist courts and ethics commissions make decisions regarding the law as applicable to attorneys. The restatement complements, rather than replaces, the Model Rules, Model Code, and other state ethics codes. It draws heavily on prior decisions made by the courts and state ethics commissions.

Areas covered by the Restatement of the Law Governing Lawyers include the regulation of the legal profession; client-lawyer relationships; lawyer civil liability; confidential client information; representation of clients; and conflicts of interest. In the short period of time after its approval, several courts applied the provisions of the restatement. The restatement has already proven particularly persuasive in resolving issues that are not addressed by ethics codes.