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Publication Date

5-2001

Document Type

Article

Abstract

Rules and standards of professional conduct are proliferating. In November 2000, the American Bar Association's ("ABA's") Ethics 2000 Commission released its final report recommending changes in the ABA's Model Rules of Professional Conduct. Earlier in the year the American Law Institute ("ALI") issued its long awaited Restatement of the Law Governing Lawyers.

The Model Rules and the Restatement are similar in two respects. 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. In 1994 the American College of Trial Lawyers issued a revision of its Code of Trial Conduct. In 1998 the ABA Section of Litigation issued Guidelines for Litigation Conduct and is now developing standards for settlement negotiations. ...

Part I of 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 of 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.

Part II considers the evaluation of these other standards. Because the Model Rules are regulatory while other standards are voluntary, it is possible to derive several principles that can guide the work of standards 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, standards should provide detailed supplementation rather than mere repetition of the Model Rules. Third, drafters should develop an action plan to make voluntary standards influential.

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