Research Notes #9: A GUIDE TO NATIONAL LEGAL ETHICS

NATIONAL (ABA) STANDARDS OF PROFESSIONAL CONDUCT

    In 1908, the American Bar Association (ABA) promulgated the Canons of Professional Ethics. The Canons were intended to guide attorneys in matters of ethical behavior.

    The Canons were succeeded in 1970 by the Model Code of Professional Responsibility. The Code consists of canons, ethical considerations and disciplinary rules. Unlike the canons and ethical considerations, which are aspirational, the disciplinary rules are mandatory. The distinction can be stated plainly as the difference between what attorneys should do (aspirational), and what they must do (mandatory). The disciplinary rules state the "minimum level of conduct below which no lawyer can fall without being subject to disciplinary action."

    In 1983, the ABA adopted the Model Rules of Professional Conduct to replace the Code. The Rules set forth the duties of a lawyer. A comment to the Rules states that "[v]iolation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies." Because the ABA is a private, non-governmental organization, its ethics rules generally do not have the force of law and the Model Code has no legal effect unless affirmatively adopted by the controlling jurisdiction.

    However, many state bar associations and state courts have adopted the Code or Rules, and many federal district courts have adopted the Code as local rules of court. Thus, the Code and Rules have considerable force; they may have the force of law, or the courts can use them to guide their decisions.

    Attorneys who violate the disciplinary rules are subject to discipline, which may consist of disbarment, suspension, or public or private reprimand. Discipline is not intended to punish attorneys, but to protect the public, the courts and the legal profession.

    Most states have adopted some version of the Model Rules, although a few states still use the Code. To learn which rules are followed by the individual states, consult the ABA/BNA Lawyers' Manual on Professional Conduct, pp. 01:3 - 01:4 and pp. 01:11 - 01:46 (see infra.).
 
 

ABA ETHICS OPINIONS

    Ethics Opinions are issued by the ABA Standing Committee on Ethics and Professional Responsibility. They construe the Model Rules of Professional Responsibility (prior to 1983, they construed the Model Code). They are not binding on any court or disciplinary body, but are  considered highly persuasive authority.

    Since 1922, the ABA Committee on Professional Ethics has issued formal and informal ethics opinions that interpret the Canons of Professional and Judicial Ethics, the Model Code of Professional Responsibility, and the Model Rules of Professional Conduct.  Formal Opinions are interpretations of the Rules that the Committee believes to be of general interest. In Informal Opinions, the Committee addresses questions that are narrower in scope and arise less frequently.

I. ABA RULES AND ETHICS OPINIONS

    A. Model code of professional responsibility, model rules of professional conduct, and other selected
         standards including the California rules on professional responsibility. Compiled by Thomas D. Morgan
         and Ronald D. Rotunda. Title on spine: Selected standards on professional responsibility

        Contains the ABA Model Rules and Model Code, tables relating Model Rules sections to Model Code
        sections, selected federal and California statutes, U.S. Supreme Court Rules, Aspirational Goals on
        Lawyer Advertising, and many other rules and standards.

       Location: KF 305 A2 1992 (3rd Floor - New)

    B. ABA/BNA lawyers' manual on professional conduct.

        The Manual is more current than other printed sources of ethics material. Published by the American Bar
        Association and the Bureau of National Affairs as a loose-leaf publication, it is updated monthly. It
        includes information on a wide range of ethics topics, including state variations on the Model Rules and
        Model Code, and a topical digest with references to case law, ethics opinions, and secondary material,
        with bibliographies at the end of each topic. See pages 01:3 - 01:4 & 01:11 - 01:46 for a listing of the
        rules followed by each state.

        Separate Current Reports volumes from 1984 to the present feature biweekly reports about court
        decisions and proceedings, ABA, state and local ethics opinions, disciplinary proceedings, legislative
        action, bar association actions, and analyses. Includes annual indexes and tables of rules.

       Location: KF 305 A8 A22 (Reserve - Circulation Desk)

    C. Annotated model rules of professional conduct. American Bar Association.

        This work discusses the case law and other local authorities pertaining to each rule. Each provision of the
        Model Rules is compared to the earlier Model Code, and tables provide cross-references to Rule and
        Code provisions. Includes a topical index.

        Location: KF 305 A21 1992 (Reserve - Circulation Desk)

    D. The law of lawyering: a handbook on the Model Rules of Professional Conduct, 2d ed. Geoffrey
         C. Hazard, Jr. and W. William Hodes.

        This two-volume loose-leaf publication, organized by Model Rule number, is a thorough commentary on
        the Model Rules. Each rule is accompanied by an overview, comments, discussion of cases and
        supplementary authorities. This work is kept up-to-date with regular supplements.

       Location: KF 306 H33 1990 (3rd Floor - New)

    E. The legislative history of the Model Rules of Professional Conduct: their development in the ABA House of
         Delegates. American Bar Association. Title on spine: Model Rules Legislative History 

        This work contains the recommendations presented to the ABA House of Delegates and transcripts of
        the House debates. It spans the period from the time the ABA recommended the current format at its
        1982 House of Delegates meeting until the current format was adopted at the ABA's annual meeting in
        1983.

        Location: KF 306 L465 1987 (3rd Floor - New)

    F. Annotated Code of Professional Responsibility. American Bar Foundation.

        This work provides extensive commentary on Code provisions, including references to case law and
        secondary sources. It also contains background information about the drafting of the Code.
        Bibliographical references and an index are included.

        Location: KF 305 A2 1979 (3rd Floor - New)

    G. Shepard's professional and judicial conduct citations.

        Provides citations to the ABA formal and informal ethics opinions, the ABA Model Rules of Professional
        Conduct, and the Model Code of Professional Responsibility. Access points: Use a professional conduct
        or disciplinary rule to locate cases, ethics opinions, law review articles, and ALR annotations from 1980
        forward.

        Location: KF 308 A535 S46 (Reserve - Circulation Desk)

    H. National reporter on legal ethics and professional responsibility.

        A state-by-state compendium of ethics materials, arranged alphabetically by state. Amount and type of
        material varies by state. Includes bibliography of legal articles and an index to ethics opinions in volume 4.
        Supplemented annually.

       Location: KF 305 A8 N38 (Reserve - Circulation Desk)

    I. Digest of bar association ethics opinions. Olavi Maru, with the assistance of Roger L. Clough.

        This work digests formal and informal ethics opinions from the ABA, all state bar associations, and seven
        local bar associations.

        Location: KF 305 A2 1970 (3rd Floor - New)

    J. Formal and informal ethics opinions: Formal opinions 316-348, Informal opinions 1285-1495.
        Standing Committee on Ethics and Professional Responsibility, American Bar Association.

       Location: KF 305 A2 1985 (3rd Floor - New)

    K. Recent ethics opinions. ABA Committee on Ethics and Professional Responsibility.

       Location: KF 305 A2 (Reserve - Circulation Desk)

        Both J. and K. collect Formal opinions #316-374 (1967-1993) and Informal opinions #1285-1528
        (1974-1989). Recent Ethics Opinions contains bibliographical information and an index.
 
 

II. TREATISES AND JOURNALS - LEGAL ETHICS AND LEGAL MALPRACTICE

    A. Restatement (Third) of the Law Governing Lawyers. American Law Institute. Tentative Drafts 1-6,
        1988-

        As its title implies, this project of the American Law Institute seeks to articulate the law governing lawyers
        and the practice of law, not only as it is expressed in ethical rules but also in procedural and substantive
        law (e.g. evidentiary privileges, legal malpractice).

       Location: KF 395 A2 L3 T.D. (Reserve - Circulation Desk)

    B. Modern Legal Ethics. Charles W. Wolfram.

        A comprehensive hornbook that covers many issues of legal ethics.

       Location: KF 306 W59 1986b (Reserve - Circulation Desk)

    C. Professional Responsibility in a Nutshell. Robert H. Aronson & Donald T. Weckstein.

        Includes a table of cases, statutes, rules and citations to secondary authorities.

        Location: KF 306 Z9 A 76 (Reserve and 3rd Floor New)  Also available on CD-Rom in the Student
        Computer Labs.

    D. Legal Malpractice, 4th ed. Ronald E. Mallen and Jeffrey M. Smith.

        This hornbook includes a bibliography, tables and an index, and is supplemented
        by annual pocket parts. Tables include statutes and rules, decisions and law review
        articles by jurisdiction, and cases. Includes sample agreements and letters.

        Location: KF 313 M29 1995 (3rd Floor - New)

    E. The Georgetown Journal of Legal Ethics.

        A law review devoted solely to issues of professional ethics. First published in
        summer 1987; volume 5 (1991-92) contains a cumulative index to articles by title
        and author.

       Location: PER (4th Floor periodical stacks; latest volme on reserve)
 
 

III. OTHER SOURCES OF INFORMATION ON LEGAL ETHICS 

    A. For other materials on legal ethics and the legal profession, check the 3rd
        floor (new side) stacks under these call number ranges:

        ABA, National and General works: KF 300-338.

        Also see KF 287.5 for law student ethics, and KF 8779 for judicial ethics.

    B. Telephone service for attorneys:

        Attorneys can call this number:

        312-988-5323 for ETHICSearch, the ABA Center for Professional Responsibility's ethics research
        service, staffed by attorneys.

    C. Online legal research sources:

        Below is a partial listing of relevant databases on LEXIS and WESTLAW. Both services fequently add
        new files and databases and update existing ones, so consult current database directories for the latest
        information.

       LEXIS: ETHICS or ABA library;

           Files: INFOP for ABA Informal Ethics Opinions

           FOPIN for ABA Formal Ethics Opinions

           CODES for Model Rules of Professional Conduct and Code of Judicial Conduct

           ETHICS: combined files of CODES + FOPIN + INFOP

       WESTLAW: LS-ABAEO database: ABA ethics opinions from 1924 to present.

           LS-CJC database: ABA Code of Judicial Conduct

           JCR database: Judicial Conduct Reporter (spring 1979 to present).

           LS-MRPC database: Model Rules of Professional Conduct
 
 

NOTE: Only currently enrolled Rutgers law students, faculty and staff are permitted to use LEXIS and WESTLAW at the Rutgers Law Library.

Nazareth Pantaloni, III
Rutgers-Camden Law Library, 11/95