5 Structure of Legal Ethics in the United States
Attorneys in the United States are provided ethical guidance by two sources: the American Bar Association’s (ABA) Model Rules of Professional Responsibility and their state’s ethical rules. In California, those are the California Rules of Professional Responsibility. Statutes and case law sometimes also provide guidance, but for purposes of this book, we focus on the ABA Model Rules and California Rules.
You will note that we use the term guidance. Guidance is what the rules provide, not absolute strictness. As we begin to examine the rules, you will see the authors themselves provide much room for interpretation. This extra latitude allows us to apply, when appropriate, specific facts to the rules to determine if we can call the actions of lawyers ethical. Ethics must be determined on a case-by-case basis.
The American Bar Association (ABA) Model Rules of Professional Responsibility were adopted by the ABA House of Delegates in 1983. They serve as models for the ethics rules of most jurisdictions. Before the adoption of the ABA Model Rules, the ABA model was the 1969 Model Code of Professional Responsibility. Preceding the Model Code were the 1908 Canons of Professional Ethics (last amended in 1963). Today, almost every jurisdiction has adopted all or a majority of the ABA Model Rules with some modifications. The bar exam and the Model Professional Responsibility Exam (MPRE) test on the ABA Model Rules.
The California Rules of Professional Conduct are intended to regulate the professional conduct of attorneys licensed by the California State Bar through discipline. They have been adopted by the Board of Trustees (the State Bar’s governing body which develops guiding policies and principles) and approved by the California Supreme Court pursuant to statute to protect the public and to promote respect and confidence in the legal profession. The rules and any related standards adopted by the board are binding on all attorneys licensed by the state bar. In 2018, California updated the CRPC to be in more line with the ABA Model Rules. Before 2018, California was the only state to have rules that did not follow the ABA Model Rules, especially as it pertained to the organization and structure of the rules.
Other Rules
The Restatement of the Law, Third, The Law Governing Lawyers is an important source for legal ethics. It covers topics not specifically addressed in the ABA Model Rules; namely, contracts and liability for malpractice. Thus, lawyers and courts will refer to it to better understand how contract law might govern the attorney-client relationship and what happens when a client sues for malpractice. Candidly, many practicing lawyers will never open the Restatement when researching legal ethics questions. However, judges often cite them in ethics opinions which is why we include them in our discussion.
Many state bars also publish opinions (called formal opinions) that respond to an ethical question posed by a lawyer. Lawyers use state bar formal opinions to guide them in researching certain ethical gray areas.
It should not be forgotten that because a lawyer practices before different federal and state courts and administrative agencies (like the Securities and Exchange Commission), these tribunals have their own set of rules. Lawyers must follow these rules.
Lastly, other federal and state statutes might require lawyers to follow certain guidelines. For example, in California, the Business and Professions Code provides certain definitions and requirements for lawyers to follow.
Thus, the ABA Model Rules and state rules are only the beginning. Lawyer conduct is always under scrutiny.