1 American Bar Association, Commission on Evaluation of Professional Standards, Model Rules of Professional Conduct (Discussion Draft, Chicago: American Bar Association, Jan. 30, 1980).Google Scholar

2 American Bar Association, Committee on Ethics and Professional Responsibility, Model Code of Professional Responsibility and Code of Judicial Conduct (Chicago: American Bar Association, as amended Feb. 1979).Google Scholar

3 Letter from Professor Anthony Amsterdam to the Grievance Committee of the District of Columbia, quoted in Time, May 13, 1966, at 81.Google Scholar

4 ABA Canons of Professional Ethics in American Bar Association, Opinions of the Committee on Professional Ethics with the Canons of Professional Ethics Annotated and Canons of Judicial Ethics Annotated (Chicago: American Bar Foundation, 1967).Google Scholar

5 Concerning the relative significance of rules of professional conduct and ethics committee opinions in the governance of lawyers, one scholar has gone so far as to say that “the opinions … have equally as much–-and perhaps more–-to do with determining the conduct of most lawyers as does positive law.” Barlow F. Christensen, Group Legal Services 46 (Tentative draft, Chicago: American Bar Foundation, 1967), as quoted in Olavi Maru with Roger L. Clough. Digest of Bar Association Ethics Opinions 3 (Chicago: American Bar Foundation, 1970).Google Scholar

6 My colleague Ted Finman and I have made a study of the formal opinions of the ABA Committee on Ethics and Professional Responsibility since the Code went into effect and have found them to be seriously flawed. See Ted Finman & Theodore J. Schneyer. The Role of Bar Association Ethics Opinions in Regulating Lawyer Conduct: A Critique of the Work of the ABA Committee on Ethics and Professional Responsibility (paper delivered at the International Congress on the Ethics and Professional Responsibilities of the Legal Profession, Tel Aviv, Aug. 1980). Since the ABA committee is well known and influential with state and local committees, we see little reason to assume that those committees do a better job.Google Scholar

7 Model Rules 2.1–2.5.Google Scholar

8 Id. Rules 4.1–4.3.Google Scholar

9 Id. Rules 5.1–5.2.Google Scholar

10 Id. Rules 6.1–6.3.Google Scholar

11 Id. Rules 3.1–3.12.Google Scholar

12 Id. Rule 1.13.Google Scholar

13 Id. Rule 1.14.Google Scholar

14 Id. Rule 1.5(c).Google Scholar

15 Id. Rule 1.3. See also id. Rule 4.l(b).Google Scholar

16 ABA Formal Opinion 340 (1975), for example, discussed whether lawyers who were husband and wife but were not associated in practice could represent clients with differing interests. Since the problem here is that a lawyer's judgment on behalf of a client might be adversely affected by his or her personal interest in a spouse's practice, DR 5–101(A) is the governing rule, as the committee recognized. In its holding, however, the committee treated the rule as sometimes barring representations even when a client had consented after full disclosure of a personal conflict, confusing the rule, perhaps, with DR 5–105.Google Scholar

17 Cf. Hull v. Calanese Corp., 513 F.2d 568 (2d Cir. 1975).Google Scholar

18 But see Committee on Professional Ethics & Conduct v. Behnke, 276 N.W.2d 838 (Iowa 1979); In re Frerichs, 238 N.W.2d 764 (Iowa 1976) (violations of any Code provision, not just a DR, may be grounds for discipline).Google Scholar

19 ABA Informal Opinion 1373 (1976).Google Scholar

20 According to the preliminary statement of the Code:Google Scholar

21 Rules, Model, supra note 1, at 21.Google Scholar

22 EC 2–23 provides as follows: “A lawyer should be zealous in his efforts to avoid controversies over fees with clients and should attempt to resolve amicably any differences on the subject. He should not sue a client for a fee unless necessary to prevent fraud or gross imposition by the client.”.Google Scholar

23 F. Raymond Marks & Darlene Cathcart, Discipline Within the Legal Profession: Is It Self-Regulation? 1974 U. III. L.F. 193.Google Scholar

24 Model Rule 1.4.Google Scholar

25 Compare DR 6–101(A)(3) with Model Rule 1.2.Google Scholar

26 Model Rule 1.1 provides as follows: “A lawyer shall undertake representation only in matters in which the lawyer can act with adequate competence. Adequate competence includes the specific legal knowledge, skill, efficiency, thoroughness, and preparation employed in acceptable practice by lawyers undertaking similar matters.”Google Scholar

27 Rules, Model, supra note 1, at 10.Google Scholar

28 In its preliminary Scope and Definitions section, the Model Rules state:Google Scholar

29 Wolfram, Charles W., The Code of Professional Responsibility as a Measure of Attorney Liability in Civil Litigation, 30 S.C.L. Rev. 281, 303–19 (1979).Google Scholar

30 Rules, Model, supra note 1, at 4.Google Scholar

31 Id. at 4–5.Google Scholar

32 Model Code, supra note 2, at 1.Google Scholar

33 See Bickel v. Mackie, 447 F. Supp. 1376, 1383–84 (N.D. Iowa), aff'd, 590 F.2d 341 (8th Cir. 1978).Google Scholar

34 See Wolfram, , supra note 29, at 286–87. Of course most of the Model Rules, like most of the DRs in the Code, are too general or imprecise to provide a more specific standard of care than that which would otherwise be used in malpractice claims against lawyers.Google Scholar

35 Rules, Model, supra note 1, at 5.Google Scholar

36 Id. at 30.Google Scholar

37 DR 1–102(A)(2).Google Scholar

38 Model Rule 7.2(b) provides as follows:Google Scholar

39 Model Rule 7.2(a) provides as follows: “A lawyer having supervisory authority over another lawyer shall make a reasonable effort to see that the conduct of the lawyer under supervision conforms to the Rules of Professional Conduct.”Google Scholar

40 Rules, Model, supra note 1, at 112.Google Scholar

41 Id. (“The measures a firm should take to fulfill its supervisory responsibilty depend on the firm's structure and the nature of its practice.”)Google Scholar

42 Disciplinary jurisdiction is usually tied to the state's, and particularly the courts', authority to license lawyers. Presumably, a corresponding system of firm or office licensing could be devised a well. The point is that this would appear to be a necessary prerequisite to any system of collective responsibility.Google Scholar

43 Id. at 112–13.Google Scholar

44 This is the clear implication, for example, of ABA Informal Opinion 1203 (1972).Google Scholar

45 Model Rules 7.3(a) provides as follows: “A lawyer acting under the supervisory authority of another person is bound by the Rules of Professional Conduct notwithstanding the fact that the lawyer's conduct was ordered by the supervisor.”Google Scholar

46 Model Rule 7.3(b) provides as follows: “A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer's resolution of a reasonably arguable question of professional duty.”Google Scholar

47 Like the Model Code, the Model Rules consider the circumstances under which a lawyer must and may withdraw from representing a client. Compare DR 2–110 with Model Rule 1.16. But neither the Code nor the Rules deal with the question of what constitutes effective withdrawal from representing a client on the part of a lawyer whose firm continues to represent that client or effective withdrawal from a particular matter on the part of full–time house counsel. For reasons why withdrawal in these situations should be construed to require quitting a job rather than simply ceasing to work on a case, see Theodore J. Schneyer, Limited Tenure for Lawyers and the Structure of Lawyer-Client Relations: A Critique of the Lawyer's Proposed Right to Sue for Wrongful Discharge, 59 Neb. L. Rev. 11, 17 n. 13 (1980). Extending the analysis set out in that article, there may be a case for giving house counsel the same immunity for carrying out the reasonable but mistaken orders of their lay superiors as Model Rule 7.3(b) confers upon lawyers who follow the orders of other lawyers.Google Scholar

48 DR 1–103(A) provides as follows: “A lawyer possessing unprivileged knowledge of a violation of [a DR] shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.”Google Scholar

49 Brown, Harold, A.B.A. Code of Professional Responsibility: In Defense of Mediocrity, Trial, Aug.-Sept. 1970, at 30.Google Scholar

50 Arkin, Stanley S., Self-Regulation and Approaches to Maintaining Standards of Professional Integrity, 30 U. Miami L. Rev. 803, 815 (1976).Google Scholar

51 See, e.g., E. Wayne Thode, The Duty of Lawyers and Judges to Report Other Lawyers' Breaches of the Standards of the Legal Profession, 1976 Utah L. Rev. 95; Note, The Lawyer's Duty to Report Professional Misconduct, 20 Ariz. L. Rev. 509 (1978).Google Scholar

52 Model Rule 10.3 provides as follows: “A lawyer having information indicating that another lawyer has committed a substantial violation of the Rules of Professional Conduct shall report the information to the appropriate disciplinary authority.”Google Scholar

53 Rules, Model, supra note 1, at 131.Google Scholar

54 Model Rule 8.1 provides as follows:Google Scholar

55 Rules, Model, supra note 1, at 119.Google Scholar

56 One apparent distinction between Model Rule 10.3 and DR 1–103(A) turns out to be no distinction at all. The Code's reporting requirement applies only when a lawyer's knowledge of violations is “unprivileged.” On its face, Model Rule 10.3 has no such limitation. As the comment to Rule 10.3 explains, however, the reporting requirement is meant to be “qualified by duties owed to the lawyer's client,” including the duty of confidentiality under Rule 1.7. Model Rules, supra note 1, at 132.Google Scholar

57 Id. at 88, commenting on Rule 4.1.Google Scholar