This article has been written by Sreedhar Prasad G, pursuing Crack California Bar Examination – Test Prep Course and has been edited by Oishika Banerji (Team Lawsikho).
It has been published by Rachit Garg.
Table of Contents
Introduction
In the matter of administration of Justice in the United States of America, certain operational guidelines are set out objectively in an organised manner to regulate their professional work. The set of operational guidelines are evaluated by the apex body of legislature, called the Senate and upon obtaining Senate’s approval, the State Administration then stipulates the Senate approved guidelines into Model Rules of Professional Conduct. Every legal officer must observe Model Rules of Professional Conduct in their day to day legal transactions in the courts operating in their jurisdiction. Model Rules of Professional Conduct sets out well operating instructions each of which reflect ethical standards in the legal profession. The Department of Justice oversees the activity of all courts or legal offices and ensures that all legal transactions function on the same lines. Recently, the legal profession, or the organised portion of it suffered through a six-year dispute over the norms it would adopt to define the professionally responsible behaviour of its members.’ A new model ethics code, known as the Model Rules of Professional Conduct (Rules), was accepted by the American Bar Association’s House of Delegates in August 1983 after several drafts, some of which were widely published, some of which were not, and with occasional major changes between them.
Chronologically, ABA evolved a system of operating procedure for lawyers, known as the following:
- The Model Code of Professional Responsibility was created by the American Bar Association in 1969.
- The Model rules of Professional Conduct were adopted by the American Bar Association House of Delegates in 1983.
- The Model Code consisted of Canons of Professional Ethics, Ethical Considerations, and Disciplinary Rules. Only the Disciplinary Rules were mandatory.
This article serves as a guide discussing the interrelationship between ABA Model Rules of Professional Conduct and ABA Model Code of Professional Responsibility and giving a brief insight to the Model Rules of Professional Conduct (Rules).
ABA Model Rules of Professional Conduct
The ABA Model Rules of Professional Conduct has 59 rules shaped into 8 Chapters, namely,
- Preamble and scope,
- Client – Lawyer relationship,
- Counsellor,
- Advocate,
- Transactions with Persons other than Clients,
- Law firms and associations,
- Public service,
- Information about legal services,
- Maintaining the integrity of Profession.
Preamble and scope
The Preamble lays down that a lawyer is a representative of his client and should explain all aspects of the contest impartially to his client and act as a prudent professional whereas the scope elaborates on the interpretation of rules by connecting them with an underlying reasoning in a clear manner.
Client-Lawyer Relationship
The client-lawyer relationship has been discussed under Rule 1.0 of the ABA Model Rules of Professional Conduct. The Rule also inculcates terminologies such as belief, confirmed in writing, firm, fraud, informed consent, knowingly, partner, reasonable belief, reasonably should know, screened, substantial, tribunal, writing.
Further, Rule 1.1 to Rule 1.18 cover the various aspects of client lawyer relationship such as competence, extent of representation and authority, due diligence, communication, fees, confidentiality of information, conflict of interests, imputation of conflicts of interests, organisation as a client, client with diminished capacity, safekeeping property, declining or terminating representation, sale of law practice, and duties to prospective client.
The restriction of lawyer advertising and solicitation, as well as client confidences, are two of the Model Rules’ most contentious topics. These Rules are the ones whose Model CPR equivalents differ significantly from state to state. Due to these and other regional variations, each state’s evaluation of the Model Rules should involve a careful examination of regional interpretations of the state’s current CPR in order to identify which of the Model Rules needs to be changed to comply with state policy.
Model Code of Professional responsibility
There are 22 canons shaped in four chapters named as Lawyer and Society, Lawyer and legal Profession, Lawyer and the courts, Lawyer and the Client. A few canons are summarised herein below:
- A lawyer shall uphold the constitution, obey the laws of land and promote respect for law and legal process.
- A lawyer shall make his legal services available in an efficient and convenient manner compatible with the independence, integrity and effectiveness of the profession.
- A lawyer in making, must know that his legal services should be true, honest, fair, dignified, objective information or statements of facts.
- A lawyer shall participate in development of the legal system by initiating or supporting efforts in law reform and in improvement of administration of justice.
- A lawyer shall keep abreast of legal developments, participate in legal education programs, support in achieving high standards in law schools as well as in practical training of law students and assist in disseminating law and jurisprudence.
Relationship between Code, Rule and Responsibility
The Code of professional conduct stipulates as to how a lawyer should shape himself as a legal entity with reference to society as a whole. It refers to characteristics that a lawyer must possess irrespective of the period of his service in the profession. A Rule of professional responsibility engraves linings as to how he should deal with his clients and work out his legal transactions in respective jurisdiction. It reflects the professional mark of an advocate. An advocate with a good grain of personal character and a good professional conduct owns professional responsibility and sets an example of cohesive personification of Model Code of Professional Responsibility and Model rule of Professional Conduct.
An advocate with excellence in professional knowledge and irregular professional conduct may not rise in profession. Similarly, an advocate with excellence in professional conduct, finding dearth of professional responsibility also may not rise in profession. A successful advocate means an “advocate who attains excellence in professional knowledge, professional conduct and demonstrates through performance best standards in assuming professional responsibility”.
The inter-relationship between Code, Rule and Responsibility is showcased in the dependency of one with the other. Although these elements are independently independent of each other, they are not interdependently independent. Both the ABA Model Rules of Professional Conduct and ABA Model Code of Professional Responsibility incorporate this essence thereby establishing a healthy relationship among Code, Rule and Responsibility.
Conclusion
The purpose behind writing this article has been entirely to discuss the Model Rules in a brief manner so as to highlight the essence behind it thereby not going within the detailed provisions for the same is readily available in the internet. The article has focused on the client-lawyer relationship on one hand and the inter-relationship among Code, Rule and Responsibility on the other. These two serve as the fundamental pillars reflecting the essence of our discussed Rule.
References
- https://core.ac.uk/download/pdf/159593666.pdf.
- https://scholarworks.law.ubalt.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1324&context=lf.
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