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A TIME OF TRANSITION: Turn of the Century Ethics

by Ross Simmons

Allow me to throw my hat in the ring with those who avail themselves of the new millennium as an excuse to ruminate on where we are and where we are going in terms of professional responsibility. By pure coincidence with the advent of the new millennium, I believe this to be a profound and intriguing time of change in the field of legal ethics, particularly in California.

Those who generate rules of professional responsibility have historically been reactionary rather than visionary, and that is not without its frustration. As chronic "late arrivers," our profession conspicuously lacks ethical guidance on such commonplace phenomena as lawyers serving as neutral parties in ADR proceeding and Internet legal advertising. Only recently has the ABA taken a position on the ethical implications of using electronic mail. The approaching millennium seems to have prompted an effort on the part of several legal organizations to change from reaction to vision in establishing ethical standards for lawyers.

New Kid on the Block

The American Law Institute (ALI) approved its first Restatement of the Law Governing Lawyers. Make no mistake; this Restatement is a major event. For years, creators of ethics codes have gone to great lengths to assure us that their standards do not purport to create civil causes of action, to articulate substantive legal duties of lawyers or to create non-disciplinary consequences of noncompliance. The ALI Restatement changes all of that. Its stated intent is to articulate standards relative to legal malpractice liability, lawyer disqualification and legal fee forfeiture. I anticipate that its publication will precede this article, and in point of fact, a significant body of law has already developed interpreting those provisions of the ALI Restatement that were released in draft form.

Wake Up Call

The American Bar Association, which has long been in the business of establishing ethical standards for lawyers, is reacting strongly to ALI's Restatement. For nearly 20 years, California and about one third of the other states have not subscribed to the ABA's 1983 Model Rules of Professional Conduct. For nearly twenty years, the ABA was not particularly concerned about the lack of acceptance of its Model Rules. The prospect of the ALI's Restatement changed all that. Thus, on the eve of ALI approval, the ABA formed its own Commission on the Evaluation of the Rules of Professional Conduct ("Ethics 2000"), to perform "a comprehensive study and review" of the Model Rules.

The Isle of California

So why do we care about what either of these organizations is doing? California is a bit of an ethical oddity compared to the rest of the country. California has never opted to follow the ABA's models in its regulation of professional conduct. Unfortunately, in its stead, California has created a hodgepodge of ethics regulations divided unsystematically between the Business & Professions Code and the California Rules of Professional Conduct, as well as a number of happenstance references throughout the California Code.

Not did we ingratiate ourselves to the rest of the country when our Supreme Court denied legal fees to a New York law firm for work performed here on the basis of unauthorized practice of law because participating lawyers were not licensed to practice in California. Charles W. Wolfram of Cornell University is quoted as saying the case "sets the legal field back a quarter of a century." I think Professor Wolfram is over-reacting. At the same time, however, know that Professor Wolfram is the chief reporter for the Restatement. Not unexpectedly, the Restatement of the Law Governing Lawyers is not, shall we say, "California friendly."

The curiosity that is California is fascinating in this context. Certainly, the ABA would love to bring California on board the Model Rules bandwagon. In deference to California ethics standards, for instance, many of the proposed revisions to the Model Rules propose the "informed written consent" requirement, a uniquely California concept. The battle over standards for legal ethics gets even more complicated. For those of you who may have just awakened from a coma, I observe that the State Bar is not particularly popular with the legislative and executive branches of our state these days. Not, in our hour of need, did our own judicial branch rush to the rescue. IN point of fact, the California Supreme Court has either changed or rejected all proposed rules of the State Bar in the latter part of this decade.

Accept that the California Rules of Professional Conduct vary significantly from the ABA Model Rules and Model Rule Code, and the latter in their present form vary significantly from the ALI Restatement. In remains to be seen whether the ALI Restatement carries any weight in California courts, but if it does, the practitioner is now in the unenviable position of complying with the California Rules of Professional Conduct, and yet facing malpractice, disqualification, or fee denial under the Restatement based on markedly different standards.

What's Your Point?

It is not clear what form the State Bar will take if and when it revives, but I suspect it will be different. Expect more intervention from the legislature, for better or for worse. That said, appreciate that the establishment of a comprehensive set of "model rules" to govern the professional behavior of attorneys is a particularly attractive prospect for legislators who may know little of the issues they are addressing. While I disagree with many of the ABA's Model Rules, and many of their proposed revisions under Ethics 2000, I am not particularly offended by that prospect. It would be nice to have a uniform resource of guidance with regard to professional responsibility.

Further, if we expect Ethics 2000 to give deference to standards of the ALI Restatement, I would like to think that complying with rules of professional conduct could, in related fashion, assist the practitioner in avoiding liability, disqualification, and forfeiture in other contexts as well.

So that is the admonition of a millennium. If you didn't care about professional responsibility before, now would be a good time to start. If you focused only on California rules previously, I suspect that is shortsighted. And if California should find itself gravitating toward the ABA model, hold on tight. The change will be dramatic and perhaps painful, but if the ALI Restatement means anything to our courts, it will be the most important change in your practice.