A Short History of Legal Ethics
By Travis Pickens, OBA Ethics Counsel
The Oklahoma Rules of Professional Conduct, with some revisions, are based upon the ABA’s Model Rules of Professional Conduct. The present ABA Model Rules of Professional Conduct, and therefore our own rules, have a history that goes back to 1836, when David Hoffman, an author and law professor at the University of Maryland, published for his students “Resolutions in Regard to Professional Deportment.”1 Professor Hoffman advised his students to let their conscience be their “sole guide” (Resolution 33) and further instructed them to “espouse no man’s cause out of envy, hatred or malice, toward his antagonist” (Resolution 2).
Almost three decades later, professor and Judge George Sharswood published “A Compend of Lectures on the Aims and Duties of the Profession of Law.” Sharswood’s compendium was more specific than Hoffman’s general reliance on a lawyer’s conscience. Sharswood’s practical approach was designed to provide concrete rules that were easier to teach (and enforce).
The first state bar to adopt a code of ethics was Alabama. It published its “Code of Ethics” in 1887. Legal historians have determined that the Alabama code was based upon Sharswood’s “Essays on Professional Ethics.” A few other states followed Alabama’s lead. There was no national model code until the ABA, a relatively new voluntary bar association founded in 1878, approved 32 Canons of Professional Ethics in 1908. The ABA canons mirrored the Alabama code. Now, a sort of standardization of ethics rules had reached points on ends of the spectrum, one state and the most prominent nationwide legal association. It was only a matter of time before other states followed suit, and they eventually did.
Initially, the ABA implemented its code as private law, only applied to those attorneys who had joined the association. But that, of course, had limited impact as attorneys did not need membership in the ABA to practice law. Then, as now, membership was not mandatory. The most that would happen to a member attorney who violated the rules was banishment from the association.
Various states, however, began to adopt the ABA canons as positive law, which led to remedies with real power enforced by the supreme courts of the states. A lawyer could be suspended or disbarred. Another important development was the formation of the ABA’s Ethics Committee to interpret its canons. These opinions were important guideposts not only for the ABA membership but for state courts enforcing its rules, usually based upon the ABA’s canons.
Although more specific than Professor Hoffman’s King Arthur-like conscience-driven goals, and despite periodic amendments, the ABA canons remained generalizations to some degree, lacking the particularity needed in an increasingly complex world and legal environment. It was not until 1969 that the ABA adopted a totally revised set of ethical rules, the Code of Professional Responsibility. Because of antitrust concerns brought about by the ABA’s requirements that its member lawyers abide by certain rules that arguably restricted competition, e.g. strictures as to advertising and minimum fees, the ABA acknowledged in 1978 that its rules were really only a model code. The code served the purpose of solidifying and elevating professional ethics but still suffered from lack of clarity.
The code was an overwritten set of canons, ethical considerations and disciplinary rules — the first two of which were simply aspirational and only the third mandatory. Somehow, they were all to be read together. It could be confusing to read, and to enforce.
The law of lawyering continued to evolve when the Kutak Commission (named after founding member, Robert J. Kutak, of the Kutak Rock law firm in Omaha) wrote several drafts of a new code between 1977 and 1983. The Model Rules of Professional Conduct were approved by the ABA in 1983. With several amendments, Oklahoma adopted the Rules of Professional Conduct on March 10, 1988, to be effective July 1, 1988. Prior to that time, Oklahoma had relied on disciplinary rules based upon the ABA code.
Ten years later, the ABA established what came to be known as the Ethics 2000 Commission that was charged with evaluating the rules once again. Instead of wholesale replacement, the commission proposed a series of amendments that were adopted by the ABA in February 2002. The Oklahoma Supreme Court, again with several state-specific amendments, adopted the ABA’s Model Rules, as those rules were then amended, effective Jan. 1, 2008. There has been one substantive amendment since then relating to how changes made by lawyers to IOLTA trust accounts must be reported.
Similar to the ABA’s Ethics Committee, the Oklahoma Bar Association, itself or through the present Legal Ethics Advisory Panel, has provided opinions as to ethics questions brought to it by Oklahoma lawyers. The first ethics opinion written by the then “state bar” was in 1931 and concerned whether the entity, a real estate and property management business with a legal department, could include its legal services within an ad for the business’s property-related services. The answer was “no” as advertising legal services was “derogatory to the dignity and self respect of the profession.” There have been more than 320 ethics opinions written since then, all or most of which are available on the OBA’s website, www.okbar.org.
In August 2009, the ABA announced the formation of the Commission on Ethics 20/20. The commission will eventually draft and present recommendations for consideration by the ABA House of Delegates. See www.abanet.org/ethics2020.
How we practice law and how we meet those obligations have changed, but why we do so never has. Throughout the years, the traditional standards that have called lawyers to the bar have remained constant — duty, honor and integrity.
1. The information that follows relating to the evolution of the ABA’s rules pertaining to professional conduct, including the quoted material, is taken from Legal Ethics, The Lawyer’s Deskbook on Professional Responsibility by Ronald D. Rotunda and John S. Dzienkowski, 2010-2011, The Center for Professional Responsibility, The American Bar Association, West publishing, copyright 2010, pages 1-13.
About The Author
Travis Pickens serves as OBA Ethics Counsel. He is responsible for addressing ethics questions from OBA members, working with the Legal Ethics Advisory Panel, monitoring diversion program participants, teaching classes and writing articles. A former litigator in private practice, he has served as co-chair of the Work/Life Balance Committee and as vice-chair of the Lawyers Helping Lawyers Assistance Program Committee.