Resizing the Rules of Professional Conduct
Georgetown Journal of Legal Ethics, Vol. 27, p. 227, 2014
58 Pages Posted: 4 Sep 2014 Last revised: 5 Sep 2014
Date Written: September 2, 2014
As the legal profession continues to grow in size and specialization, critiques of the ABA Model Rules of Professional Conduct’s one-size-fits-all regulatory approach mount. Opponents of the Rules argue that with so many lawyers doing increasingly different things, universal rules are bound to ill-fit the practices of most lawyers; and call for contextual regulation in the form of specialized codes of conduct. Proponents of the Rules retort the universal rules which treat all lawyers the same embody equality and professionalism, and add that specialty codes are impractical given fluid modern practice realities that cut across traditional subject matter, geographical and jurisdictional lines. The result in an uneasy stalemate: the Rules maintain their one-size-fit-all approach, which critics argue renders them increasingly anachronistic and of diminishing value to practicing lawyers.
This Article argues that a key problem with the Rules is not that they purport to be universal but rather that they implement the wrong one-size-fits-all model based on universal content that is out of touch with the practice of American lawyers. Specifically, the Article establishes that the Rules’ approach is based on four obsolete assumptions about lawyers and their practice realities: that most lawyers are litigators, that they predominantly serve clients as opposed to the legal system and the public, that they hail from a homogenous background, and that most lawyers practice as individuals. These assumptions, however, are no longer valid given the immense and growing diversity of the American legal profession. In order to remain relevant in the twenty-first century, and irrespective of whatever reforms may lay ahead in the long term, at minimum what the Rules need is resizing: a different one-size-fits-all approach accurately reflecting a contextual and empirically informed content that is not so greatly divorced from the realities of practicing lawyers.
Instead of adhering to the status quo or implementing impractical specialized codes of conduct, the Article advocates for a middle-ground approach: the adoption of univertext rules – universal rules grounded in the actual contextual empirical realities of practicing lawyers rather than outdated assumptions about them. Exploring and building on recent empirical analyses of the legal profession the Article demonstrates how the Rules can replace an anachronistic focus on litigators with rules for all lawyers, can include provisions that explore the meaning of lawyers’ roles as officers of the legal system and public citizens alongside that of the hired gun, can engage lawyers hailing from increasingly diverse backgrounds, and can acknowledge the realities of lawyers practicing in firms rather than as individuals.
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