In mid-1997, ABA President Jerome J. Shestack, his
immediate predecessor, N. Lee Cooper,
and his successor, Philip S. Anderson
had the vision to establish the "Ethics
2000" Commission. These three leaders
persuaded the ABA Board of Governors
that the Model Rules adopted by the ABA
House of Delegates in 1983 needed
comprehensive review and some revision,
and this project was launched. Though
some might have thought it premature to
reopen the Model Rules to such a
rigorous general reassessment after only
14 years, the evaluation process has
proven that the ABA leadership was
correct.
One of the primary
reasons behind the decision to revisit
the Model Rules was the growing
disparity in state ethics codes. While a
large majority of states and the
District of Columbia had adopted some
version of the Model Rules (then 39, now
42), there were many significant
differences among the state versions
that resulted in an undesirable lack of
uniformity - a problem that had been
exacerbated by the approximately 30
amendments to the Model Rules between
1983 and 1997. A few states had elected
to retain some version of the 1969 Model
Code of Professional Responsibility, and
California remained committed to an
entirely separate system of lawyer
regulation.
But it was not only
the patchwork pattern of state
regulation that motivated the ABA
leaders of 1997 to take this action.
There were also new issues and questions
raised by the influence that
technological developments were having
on the delivery of legal services. The
explosive dynamics of modern law
practice and the anticipated
developments in the future of the legal
profession lent a sense of urgency as
well as a substantive dimension to the
project. These developments were
underscored by the work then underway on
the American Law Institute’s Restatement
of the Law Governing Lawyers.
There was also a
strong countervailing sense that there
was much to be valued in the existing
concepts and articulation of the Model
Rules. The Commission concluded early on
that these valuable aspects of the Rules
should not be lost or put at risk in our
revision effort. As a result, the
Commission set about to be
comprehensive, but at the same time
conservative, and to recommend change
only where necessary. In balancing the
need to preserve the good with the need
for improvement, we were mindful of
Thomas Jefferson's words of nearly 185
years ago, in a letter concerning the
Virginia Constitution, that "moderate
imperfections had better be borne with;
because, when once known, we accommodate
ourselves to them, and find practical
means of correcting their ill effects."
Thus, we retained the
basic architecture of the Model Rules.
We also retained the primary
disciplinary function of the Rules,
resisting the temptation to preach
aspirationally about "best practices" or
professionalism concepts. Valuable as
the profession might find such guidance,
it would not have - and should not be
misperceived as having - a regulatory
dimension. We were, however, always
conscious of the educational role of the
Model Rules. Finally, we tried to keep
our changes to a minimum: when a
particular provision was found not to be
"broken" we did not try to "fix" it.
Even so, as the reader will note, the
Commission ended up making a large
number of changes: some are relatively
innocuous and nonsubstantive, in the
nature of editorial or stylistic
changes; others are substantive but not
particularly controversial; and a few
are both substantive and controversial.
The deliberations of
the Commission did not take place in a
vacuum and our determinations are not
being pronounced ex cathedra.
Rather, they are products of thorough
research, scholarly analysis and
thoughtful consideration. Of equal
importance, they have been influenced by
the views of practitioners, scholars,
other members of the legal profession
and the public. All these constituencies
have had continual access to and
considerable - and proper - influence
upon the deliberations of the Commission
throughout this process.
I must pause to
underscore the openness of our process.
We held over 50 days of meetings, all of
which were open, and 10 public hearings
at regular intervals over a four and
one-half year period. There were a large
number of interested observers at our
meetings, many of whom were members of
our Advisory Council of 250-plus
persons, to offer comments and
suggestions. Those observations were
very helpful and influential in shaping
the Report. Our public discussion
drafts, minutes and report were
available on our website for the world
to see and comment upon. As a
consequence, we received an enormous
number of excellent comments and
suggestions, many of which were adopted
in the formulation of our report.
Moreover, we
encouraged state and local bar
associations, ABA sections and
divisions, other professional
organizations and the judiciary to
appoint specially designated committees
to work with and counsel the Commission.
This effort was successful, and the
Commission benefitted significantly from
the considered views of these groups.
In heeding the
counsel of these advisors, we were
constantly mindful of substantial and
high-velocity changes in the legal
profession, particularly over the past
decade. These changes have been
highlighted by increased public scrutiny
of lawyers and an awareness of their
influential role in the formation and
implementation of public policy;
persistent concerns about lawyer
honesty, candor and civility; external
competitive and technological pressures
on the legal profession; internal
pressures on law-firm organization and
management raised by sheer size, as well
as specialization and lawyer mobility;
jurisdictional and governance issues
such as multidisciplinary and
multijurisdictional practice; special
concerns of lawyers in nontraditional
practice settings, such as government
lawyers and in-house counsel; and the
need to enhance public trust and
confidence in the legal profession.
At the end of the
day, our goal was to develop a set of
Rules that are comprehensible to the
public and provide clear guidance to the
practitioner. Our desire was to preserve
all that is valuable and enduring about
the existing Model Rules, while at the
same time adapting them to the realities
of modern law practice and the limits of
professional discipline. We believe our
product is a balanced blend of
traditional precepts and forward-looking
provisions that are responsive to modern
developments. Our process has been
thorough, painstaking, open, scholarly,
objective and collegial.
It is
impossible here to go into detail about
the changes proposed by the Commission.
The changes recommended by the
Commission clarified and strengthened a
lawyer's duty to communicate with the
client; clarified and strengthened a
lawyer's duty to clients in certain
specific problem areas; responded to the
changing organization and structure of
modern law practice; responded to new
issues and questions raised by the
influence that technological
developments are having on the delivery
of legal services; clarified existing
rules to provide better guidance and
explanation to lawyers; clarified and
strengthened a lawyer's obligations to
the tribunal and to the justice system;
responded to the need for changes in the
delivery of legal services to low and
middle income persons; and increased
protection of third parties.
The ABA House of
Delegates began consideration of the
Commission's Report at the August 2001
Annual Meeting in Chicago and completed
its review at the February 2002 Midyear
Meeting in Philadelphia. At the August
2002 Annual Meeting in Washington, D.C.,
the ABA House of Delegates considered
and adopted additional amendments to the
Model Rules sponsored by the ABA
Commission on Multijurisdictional
Practice and the ABA Standing Committee
on Ethics and Professional
Responsibility. As state supreme courts
consider implementation of these newly
revised rules, it is our fervent hope
that the goal of uniformity will be the
guiding beacon.
In closing, the
Commission expresses its gratitude to
the law firm of Drinker Biddle & Reath,
whose generous contribution helped make
possible the continued, invaluable
support of the Commission's Chief
Reporter. I also want to express
personally my gratitude to and
admiration for my colleagues. The
chemistry, good will, good humor,
serious purpose, collegiality and hard
work of the Commission members,
Reporters and ABA staff has been
extraordinary. The profession and the
public have been enriched beyond measure
by their efforts. It has been a pleasure
and a privilege for me to work with all
of them.
E. Norman Veasey
August 2002
