1.04. A short history of the regulation of lawyers

The world of legal ethics has not always been as developed (and technical) as it is now.  In the 1800s, there was no enforceable set of ethics rules – instead, each court had the inherent power to regulate lawyers before the court.  This created two real problems.  First, every court’s standard for what was an ethics violation differed.  Conduct that would be sanctioned by one judge would be allowed by another.  A second, and more serious concern, was that court sanctions were limited to a particular court.  Therefore, if a judge barred a lawyer from appearing in the judge’s courtroom, that lawyer could simply move to the next county over and continue practicing law. 

After the Civil War, bar associations which at first were voluntary associations of lawyers, were formed around the country.  The associations, which consisted of the self-described “best men” had the goal of restricting entry to the legal profession by implementing a bar exam and educational requirements to be admitted to practice.  To demonstrate how restrictive this was, consider that only 2% of Americans had a high school degree in 1870 (in 1910 it was only 8.6%), and even by 1960, only 6% had a college degree.  These bar associations gradually began to adopt ethical standards to maintain the “professionalism” of the bar and to create grievance committees to discipline attorneys who fell below these ethical standards.  Perhaps unsurprising these grievance committees “focused their crusades almost entirely on lower tier attorneys, the personal injury plaintiffs’ bar.  High-end lawyers almost entirely escaped the notice of disciplinary committees.”[1]

Both of these motivations – the need for a consistent enforcement standard and a uniform enforcement policy and the desire to maintain a high-end monopoly led to the adoption of enforceable ethics rules at the state level.  Alabama was the first state to adopt a state-sponsored set of rules in 1887.  Thereafter, the ABA adopted the Canons of Professional Ethics in 1908, based largely off of the Alabama rules.  Over time, the Canons were viewed as inadequate for the changing practice of law.  In 1934, United States Supreme Court Justice Harlan Fiske Stone encouraged a reevaluation of the Canons to “pass beyond the petty details of form and manner which have been so largely the subject of our codes of ethics” and argued that the Canons were “for the most part . . . generalizations designed for an earlier era.”[2]  By 1977, critics had become even more dismissive, describing the Canons as “little more than a collection of pious homilies” and “primitive.”[3] In response, a second set of rules, the Model Code of Professional Responsibility, was adopted in 1969.  These rules were more detailed than the Canons.  In addition to substance, the Code also changed the structure of the rules, adding “Ethical Considerations” (EC) and “Disciplinary Rules” (DR) sections.   Law practice continued to change after 1969 – with more and more practitioners going into firms.  In addition, the United States Supreme Court began to strike down regulations that were included in the Code – such as the prohibition on lawyer advertising (Bates v. Arizona).  As a result, the ABA adopted a third set of rules: the Model Rules of Professional Conduct in 1983.  Once again, not only did the substance change, but the structure changed as well.  Adopting a Restatement-style approach, the current Rules are arranged as Rules/Comments.  The Model Rules, as amended over the years, are the rules that we will study.    

Let me emphasize again that although the ABA Model Rules are tested on the MPRE and we primarily cover the model rules in this class, the reality is that, as an attorney, you will be subject to discipline for violation of your state’s ethical rules.  That is important to keep in mind.  Because lawyer regulation occurs at the state level, it creates a unique challenge when dealing with lawyers appearing in federal court.  As you know, in our federal system, the state court system exists completely separate from the federal court system.  This raises the question:  are lawyers who appear in federal court subject to the state ethical rules?  Congress attempted to address this issue in the McDade Act.  That Act states “[a]n attorney for the [United States] Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State.”[4] This would seem to resolve the issue – federal lawyers are subject to state ethical rules – but it did not.

There was concern that prosecutors were subpoenaing criminal defense lawyers for information about current or former clients at an alarming rate.  The states (and the ABA) saw this action as undermining the attorney client relationship between the criminal defense lawyer and her client.  Therefore, states began to place ethical limits on the ability of a prosecutor to subpoena a lawyer before a grand jury or other criminal proceeding.  The prosecutor had the burden of showing:  (a) the information is “essential” to the investigation; and (b) there is “no other feasible alternative” to obtaining the information. [see ABA Model Rule 8.3(e)]  These obligations placed a higher burden on federal prosecutors than was previously required to issue a subpoena to appear before a grand jury.  Does the McDade Act mean that federal prosecutors are subject to the additional obligations before seeking a subpoena? U.S. v. Supreme Court of New Mexico, 839 F.3d 888 (10^th Cir. 2016)

Maybe.  The Tenth Circuit held that the restrictions on issuing a subpoena were ethical rules – so that the McDade Act would apply.  However, the court goes on to say that the grand jury holds such a unique place in the federal system (it is even mentioned in the Constitution) and  that imposing these additional obligations in the grand jury context would violate the Supremacy Clause.  Therefore, the “essential” and “no feasible alternative” ethical standards do not apply to federal prosecutors in the grand jury context.  However, in contexts other than the grand jury, the court held that the McDade amendment means that the higher standard applies.  This opinion created a circuit split with the First Circuit – which held that there was not a Supremacy Clause violation.[5]  There was hope that the U.S. Supreme Court would take the case and provide some guidance for when the state ethics rules are (and are not) preempted.  However, in October 2017, the Court denied certiorari, so the issue remains live.[6]

[1] Robert W. Gordon, The American Legal Profession, 1870-2000 82 (2008).

[2] Harlan F. Stone, The Public Influence of the Bar 48 Harv. L. Rev. 1, 10 (1934).

[3] L. Ray Patterson, Wanted: A New Code of Professional Responsibility, 63 A.B.A. J. 639, 639 (1977).

[4] 28 U.S.C. § 530B(a).

[5] Whitehouse v. U.S. District Court for the District of Rhode Island, 53 F.3d 1349 (1^st Cir. 1995).

[6] 138 S.Ct. 78 (2017)(denying cert).