The Commission on Evaluation of
Professional Standards was appointed in the summer
of 1977 by former ABA President William B. Spann,
Jr. Chaired by Robert J. Kutak until his death in
early 1983, the Commission was charged with
evaluating whether existing standards of
professional conduct provided comprehensive and
consistent guidance for resolving the increasingly
complex ethical problems in the practice of law. For
the most part, the Commission looked to the former
ABA Model Code of Professional Responsibility, which
served as a model for the majority of state ethics
codes. The Commission also referred to opinions of
the ABA Standing Committee on Ethics and
Professional Responsibility, as well as to decisions
of the United States Supreme Court and of state
supreme courts. After thoughtful study, the
Commission concluded that piecemeal amendment of the
Model Code would not sufficiently clarify the
profession’s ethical responsibilities in light of
changed conditions. The Commission therefore
commenced a drafting process that produced numerous
drafts, elicited voluminous comment, and launched an
unprecedented debate on the ethics of the legal
profession.
On January 30, 1980, the
Commission presented its initial suggestions to the
bar in the form of a Discussion Draft of the
proposed Model Rules of Professional Conduct. The
Discussion Draft was subject to the widest possible
dissemination and interested parties were urged to
offer comments and suggestions. Public hearings were
held around the country to provide forums for
expression of views on the draft.
In the year following the last of
these public hearings, the Commission conducted a
painstaking analysis of the submitted comments and
attempted to integrate into the draft those which
seemed consistent with its underlying philosophy.
The product of this analysis and integration was
presented on May 31, 1981 as the proposed Final
Draft of the Model Rules of Professional Conduct.
This proposed Final Draft was submitted in two
formats. The first format, consisting of blackletter
Rules and accompanying Comments in the so-called
restatement format, was submitted with the
Commission’s recommendation that it be adopted. The
alternative format was patterned after the Model
Code and consisted of Canons, Ethical
Considerations, and Disciplinary Rules. In February
1982, the House of Delegates by substantial majority
approved the restatement format of the Model Rules.
The proposed Final Draft was
submitted to the House of Delegates for debate and
approval at the 1982 Annual Meeting of the
Association in San Francisco. Many organizations and
interested parties offered their comments in the
form of proposed amendments to the Final Draft. In
the time allotted on its agenda, however, the House
debated only proposed amendments to Rule 1.5.
Consideration of the remainder of the document was
deferred until the 1983 Midyear Meeting in New
Orleans. The proposed Final Draft, as amended by the
House in San Francisco, was reprinted in the
November 1982 issue of the ABA Journal.
At the 1983 Midyear Meeting the
House resumed consideration of the Final Draft.
After two days of often vigorous debate, the House
completed its review of the proposed amendments to
the blackletter Rules. Many amendments, particularly
in the area of confidentiality, were adopted. Debate
on a Preamble, Scope, Terminology and Comments,
rewritten to reflect the New Orleans amendments, was
deferred until the 1983 Annual Meeting in Atlanta,
Georgia.
On March 11, 1983, the text of
the blackletter rules as approved by the House in
February, together with the proposed Preamble,
Scope, Terminology and Comments, was circulated to
members of the House, Section and Committee
chairmen, and all other interested parties. The text
of the Rules reflected the joint efforts of the
Commission and the House Drafting Committee to
incorporate the changes approved by the House and to
ensure stylistic continuity and uniformity.
Recipients of the draft were again urged to submit
comments in the form of proposed amendments. The
House Committees on Drafting and Rules and Calendar
met on May 23, 1983 to consider all of the proposed
amendments that had been submitted in response to
this draft. In addition, discussions were held among
concerned parties in an effort to reach
accommodation of the various positions. On July 11,
1983, the final version of the Model Rules was again
circulated.
The House of Delegates commenced
debate on the proposed Preamble, Scope, Terminology
and Comments on August 2, 1983. After four hours of
debate, the House completed its consideration of all
the proposed amendments and, upon motion of the
Commission, the House voted to adopt the Model Rules
of Professional Conduct, together with the ancillary
material as amended. The task of the Commission had
ended and it was discharged with thanks.
Throughout the drafting process,
active participants included not only the members of
the Commission but also the Sections and Committees
of the American Bar Association and national, state
and local bar organizations. The work of the
Commission was subject to virtually continuous
scrutiny by academicians, practicing lawyers,
members of the press, and the judiciary.
Consequently, every provision of the Model Rules
reflects the thoughtful consideration and hard work
of many dedicated professionals. Because of their
input, the Model Rules are truly national in
derivation. The Association can take immense pride
in its continued demonstration of leadership in the
area of professional responsibility.
The Model Rules of Professional
Conduct are intended to serve as a national
framework for implementation of standards of
professional conduct. Although the Commission
endeavored to harmonize and accommodate the views of
all the participants, no set of national standards
that speaks to such a diverse constituency as the
legal profession can resolve each issue to the
complete satisfaction of every affected party.
Undoubtedly there will be those who take issue with
one or another of the Rules’ provisions. Indeed,
such dissent from individual provisions is expected.
And the Model Rules, like all model legislation,
will be subject to modification at the level of
local implementation. Viewed as a whole, however,
the Model Rules represent a responsible approach to
the ethical practice of law and are consistent with
professional obligations imposed by other law, such
as constitutional, corporate, tort, fiduciary and
agency law.
I should not end this report
without speaking of the Commission’s debt to many
people who have aided us in our deliberations, and
have devoted time, energy and goodwill to the
advancement of our work over the last six years. It
would probably be impossible to name each of the
particular persons whose help was significant to us,
and it surely would be unfortunate if the name of
anyone were omitted from the list. We are, and shall
remain, deeply grateful to the literally hundreds of
people who aided us with welcome and productive
suggestions. We think the bar should be grateful to
each of them, and to our deceased members, Alan
Barth of the District of Columbia, whom we hardly
had time to know; Bill Spann, who became a member
after the conclusion of his presidential term; and
our original chairman, Bob Kutak.
The long work of the Commission
and its resulting new codification of the ethical
rules of practice demonstrate, it is submitted, the
commitment of the American lawyer to his or her
profession and to its achievement of the highest
standards.
Robert W. Meserve
September 1983
