1 Spann, William B., Jr., “The Legal Profession Needs a New Code of Ethics,”Bar Leader, Nov. -Dec. 1977, at 2, 3.Google Scholar

2 American Bar Association, Model Rules of Professional Conduct (1983) (cited below as Model Rules).Google Scholar

3 Michels, Robert, Political Parties 401 (Glencoe, III.: Free Pre2s, 1949).Google Scholar

4 American Bar Association, Canons of Professional Ethics (1969) (cited below as CPE).Google Scholar

5 American Bar Association, Model Code of Professional Responsibility (1979) cited below as CPR).Google Scholar

6 Telephone conversation with Jeanne Gray, Director of the ABA National Center for Professional Responsibility (Mar. 9, 1985).Google Scholar

7 The Wisconsin State Bar, representative in this respect of many state and metropolitan bar associations, spent $20,000 to have a committee analyze Kutak Commission proposals and suggest changes. Letter to the author from Stephen Smay, Executive Director of the State Bar of Wisconsin (July 30, 1985).Google Scholar

8 See Commission on Professional Responsibility, Roscoe Pound-American Trial Lawyers Foundation, The American Lawyer's Code of Conduct (Public Discussion Draft, June 1980) (cited below as ACC Discussion Draft); National Organization of Bar Counsel, Proposed Amended Disciplinary Rules to the ABA Model Code of Professional Responsibility (Aug. 8, 1981) (cited below as NOBC Proposed Amended Rules).Google Scholar

9 American Bar Association, Model Rules of Professional Conduct (Discussion Draft Jan. 30, 1980) (cited below as Model Rules Discussion Draft).Google Scholar

10 American Bar Association, Model Rules of Professional Conduct (Proposed Final Draft May 30, 1981) (cited below as Model Rules Proposed Final Draft).Google Scholar

11 There have been surprisingly few studies of the internal politics of private associations. Two of the best are Seymour M. Lipset, Martin A. Trow, & Coleman, James S., Union Democracy: The Internal Politics of the International Typographical Union (Glencoe, Ill.: Free Press, 1956); Oliver Garceau, The Political Life of the American Medical Association (Hamden, Conn.: Archon, 1961).Google Scholar

12 Outside comments and internal ABA documents pertaining to the Model Rules were collected by Kutak Commission reporter Geoffrey Hazard and placed on file at the American Bar Foundation in Chicago. Comparable documents from the process that led to ABA adoption of the CPR in the late 1960s were deliberately destroyed. Olavi Maru, Annotated Code of Professional Responsibility xi (Chicago: American Bar Foundation 1979). The nondestruction of Model Rules documents suggests that ABA leaders may now accept a greater degree of public accountability than they did for the earlier ABA codes and their preparation.Google Scholar

13 American Bar Association/Bureau of National Affairs, Lawyers' Manual on Professional Conduct 01:3, 01:4 (No. 75, Mar. 15, 1989) (cited below as Lawyers' Manual).Google Scholar

14 Gilb, Corine L., Hidden Hierarchies: The Professions and Government 140 (New York: Harper & Row, 1966).Google Scholar

15 See Jaffe, Louis L., “Law Making by Private Groups,” 51 Harv. L. Rev. 201 (1937); Stewart Macaulay, “Private Government” 3–10 (University of Wisconsin Disputes Processing Research Program, Working Paper 1983–6, 1983.Google Scholar

16 Lawyers' Manual 01: 11–01: 30 (No. 75, Mar. 15, 1989).Google Scholar

17 For the contrary view that professional ethics codes are primarily addressed to the public, express values professionals think the public will accept, and may not be reliable evidence of professionals' own views, see Newton, Lisa, “Professionalism: The Intractable Plurality of Values,” in Robinson, Wade L. et al., eds., Profits and Professions: Essays in Business and Professional Ethics 23, 32 (Clifton, N. J.: Humana, 1983).Google Scholar

18 See, e. g., “Symposium: The Ethics of the Professions and Business,” 101 Annals Am. Acad. Pol. & Soc. Sci. 1–236, 254–300 (May 1922) (cited below as Annals).Google Scholar

19 Durkheim, Emile, Professional Ethics and Civic Morals 7 (Glencoe, III.: Free Press, 1958).Google Scholar

20 Id. at 14–17.Google Scholar

21 Scholars today are apt to see things the other way around; many exhort professionals to rely on their own consciences and not to adhere slavishly to ethics codes, which are politically suspect because private professional associations produce them, and ethically suspect because they allegedly displace moral reflection or, at a minimum, promote reflection of a rulebound, legalistic sort. See, e. g., Alan Goldman, “Confidentiality, Rules and Codes of Ethics,”Crim. Just. Ethics, Summer-Fall 1984, at 8, 10. (Ethics rules cannot “capture the lawyer's moral duties in all the situations he might encounter.”) My own view lies between Durkheim and the moderns. I think society stands to benefit from a dynamic process, if we can create it, in which professionals regularly test their subjective ethical judgments against an external, less idiosyncratic set of principles and test those principles against their own judgments. The Kutak Commission never regarded the Model Rules as a complete moral roadmap for the perplexed lawyer. See Model Rules Scope (para. 2) (Rules do not “exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules”). Even if the Model Rules did short-circuit the moral thought of some who consulted them for guidance, on balance they might still promote ethical reflection. After all, they generated broad debate among lawyers during the drafting process and continued to do so in the local-adoption process. “Articulation of the professional ethic,” as one philosopher puts it, is “what makes a profession a moral enterprise.” Lisa H. Newton, “Lawgiving for Professional Life: Reflections on the Place of the Professional Code,” I Bus. & Prof. Ethics J. 41 (Fall 1981).Google Scholar

22 Larson, Magali Sarfatti, The Rise of Professionalism: A Sociological Analysis 6 (Berkeley: University of California Press, 1977).Google Scholar

23 See generally Wiebe, Robert H., The Search for Order 1877–1920 (New York: Hill & Wang, 1967). On the development of trade associations, see Galambos, Louis, Competition and Cooperation: The Emergence of a National Trade Association 11–85 (Baltimore: Johns Hopkins Press, 1966).Google Scholar

24 See Lurie, Jonathan, The Chicago Board of Trade 1859–1905: The Dynamics of Self Regulation (Urbana: University of Illinois Press, 1979).Google Scholar

25 A related idea, always popular with bar leaders, is that professional associations, by developing, publicizing, and fostering the enforcement of ethical standards, enhance their members' reputations or “human capital” and are thus entitled to their support. See, e. g., “Spirit of Integration Conspicuous in New Utah State Bar,” 16 J. Am. Judicature Soc'y 6 (1932) (state bar president believes every lawyer has a duty to answer the association's call for committee service).Google Scholar

26 Cohen, Julius Henry, The Law: Business or Profession? 109 (rev. ed. New York: G. A. Jennings Co. 1924).Google Scholar

27 Id. at 158 (quoting Adler). Adler's was a plea not just for ethics codes but for a casuistic ethics in which practitioners apply ethical norms to the difficult situations that arise in everyday practice. Insofar as legal ethics is casuistic, the key institution in the field may be the bar's interpretive ethics opinions rather than the codes they interpret. See Finman, Ted & Schneyer, Theodore, “The Role of Bar Association Ethics Opinions in Regulating Lawyer Conduct,” 29 U. C. L. A. L. Rev. 67 (1981).Google Scholar

28 Harley, Herbert, “Group Organization Among Lawyers,”Annals at 33, 34, 39 (cited in note 18).Google Scholar

29 See Arrow, Kenneth J., “Uncertainty and the Welfare Economics of Health Care,” 53 Am. Econ. Rev. 941 (1963). Other economists, however, have long questioned the benefit to society of professional licensing and rules of ethics. See, e. g., Milton Friedman, Capitalism & Freedom 137–60 (Chicago: University of Chicago Press, 1962); Reuben Kessel, “Price Discrimination in Medicine,” 1 J. Law & Econ. 20 (1958).Google Scholar

30 See Brandeis, Louis D., Business–A Profession 319–24 (Boston: Small, Maynard & Co., 1914) (cited below as Brandeis, Business); Herbert D. Croly, The Promise of American Life 136 (Cambridge: Harvard University Press, Belknap Press, 1965).Google Scholar

31 See Parsons, Talcott, “The Professions and Social Structure,”Essays in Sociological Theory 38 (rev. ed. Glencoe, Ill.: Free Press, 1954).Google Scholar

32 Friedman, Lawrence M. & Zile, Zigurds, “Soviet Legal Profession: Recent Developments in Law and Practice,” 1964 Wis. L. Rev. 32, 35–36 (“Since the state's control [over lawyers in the United States as opposed to the Soviet Union] is so weak, one danger is that lawyers will tend to neglect the interests of society in favor of the exclusive interests of clients…. Thus, in the United States, the urge to professionalize, to increase standards, to inculcate morality on the part of the lawyer, is necessary”).Google Scholar

33 Lieberman, Jethro, Crisis at the Bar: Lawyer's Unethical Ethics and What to Do About It (New York: W. W. Norton, 1978).Google Scholar

34 Id. at 217.Google Scholar

35 Id. at 216–17.Google Scholar

36 Rhode, Deborah, “Why the ABA Bothers: A Functional Perspective on Professional Codes,” 59 Tex. L. Rev. 689, 692 (1981).Google Scholar

37 Lumbard, Thomas, “Setting Standards: The Courts, the Bar, and the Lawyers' Code of Conduct,” 30 Cath. U. L. Rev. 249, 266–67, 271 (1981). See also Charles Wolfram, “Barriers to Effective Public Participation in Regulation of the Legal Profession,” 62 Minn. L. Rev. 619 (1978).Google Scholar

38 See Carlin, Jerome E., Lawyers' Ethics–A Survey of the New York City Bar ch. 3 (New York: Russell Sage Foundation, 1966). More recently, a legal historian took much the same position. See Jerold S. Auerbach, Unequal Justice: Lawyers and Social Change in Modem America (New York: Oxford University Press, 1976).Google Scholar

39 Shuchman, Philip, “Ethics and Legal Ethics: The Propriety of the Canons as a Group Moral Code,” 37 Geo. Wash. L. Rev. 244, 268 (1968).Google Scholar

40 Ironically, one neo-conflict theorist recently suggested that court decisions in the 1970s hurt the “hemisphere” of lawyers who represent individual clients by striking down minimum fee schedules and restrictions on advertising and solicitation, and also suggested that the courts may have rendered those decisions because the elite corporate bar provided no interhemispheric support. See Heinz, John P., “The Power of Lawyers,” 17 Ga. L. Rev. 891, 907 (1983).Google Scholar

41 Tucker, Marna, “Pro Bono ABA?”in Ralph Nader & Mark Green, eds., Verdicts on Lawyers 20, 27–28 (New York: Crowell, 1976).Google Scholar

42 Morgan, Thomas, “The Evolving Concept of Professional Responsibility,” 90 Harv. L. Rev. 702 (1977).Google Scholar

43 Id. at 727–28. At the same time, Morgan gave little attention to (concededly few) CPR rules that seem pro-competitive. See, e. g., CPR DR 2–108(A) (lawyer may not join in a partnership or other employment agreement that restricts her right to practice after the professional relationship created by the agreement ends).Google Scholar

44 This attack may be an example of a broader criticism of the organized bar's role in lawmaking, namely that lawyers use the bar as a “front” to pursue client objectives at societal expense, even in the face of the traditional exhortation, embodied in CPR EC 8–1, to work through the bar to improve the law “without regard to the general interests or desires of clients.” See, e. g., Melone, Albert P., Lawyers, Public Policy, and Interest Group Politics (Washington: University Press of America, 1977); Elizabeth Drew, “The Rule of Lawyers,” N. Y. Times, Oct. 7, 1973, at 16 (Magazine); John Payne, “The Weakness of Bar Associations,” 2 J. Legal Prof. 55 (1977).Google Scholar

45 See, e. g., Goldman, Alan H., The Moral Foundations of Professional Ethics ch. 3 (Totowa, N. J.: Rowman & Littlefield, 1980); David Luban, “The Adversary System Excuse,”in David Luban, ed., The Good Lawyer: Lawyers' Roles and Lawyers' Ethics 83 (Totowa, N. J.: Rowman & Allanheld, 1983).Google Scholar

46 See Simon, William, “The Ideology of Advocacy: Procedural Justice and Professional Ethics,” 1978 Wis. L. Rev. 29; Wasserstrom, Richard, “Lawyers as Professionals: Some Moral Issues,” 5 Hum. Rts. 1, 23 (1975).Google Scholar

47 Postema, Gerald, “Moral Responsibility in Professional Ethics,” 55 N. Y. U. L. Rev. 63, 82 (1980). The very fact that the CPR is a code seems to me to undermine the argument that it completely “fixes” or “predetermines” a lawyer's role. Each rule in a code must be understood in the context of all the others. This inevitably gives the addressee some leeway; the text being interpreted is always richer and more complex than any one rule. See George P. Fletcher, “Two Modes of Legal Thought,” 90 Yale L. J. 970 (1981).Google Scholar

48 CPR EC 2–26. True, the CPR exhorts lawyers not to refuse cases “lightly,”id., EC 2–29, but rejecting a case on grounds of conscience hardly seems like whimsy.Google Scholar

49 Id., DR 7–101(A)(1).Google Scholar

50 Id., DR 2–110(C)(1)(e); EC 7–8.Google Scholar

51 See Brandeis, Business 319–24 (cited in note 30); Frank, John, “The Legal Ethics of Louis D. Brandeis,” 17 Stan. L. Rev. 683, 698 (1965).Google Scholar

52 See Fried, Charles, “The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation,” 85 Yale L. Rev. 1060 (1976).Google Scholar

53 See Shaffer, Thomas L., On Being a Christian and a Lawyer 35–104 (Provo, Utah: Brigham Young University Press, 1981).Google Scholar

54 Abel, Richard, “Why Does the ABA Promulgate Ethical Rules?” 59 Tex. L. Rev. 639, 642 (1981).Google Scholar

55 Id. at 667.Google Scholar

56 Remarks of Robert Kutak to the National Conference of Bar Presidents, ABA Annual Meeting, Aug. 1978.Google Scholar

57 See Spann, William, Jr., “The Legal Profession Needs a New Code of Ethics,”Bar Leader, Nov.-Dec. 1977, at 2.Google Scholar

58 Id. On the use of other bar projects and programs to shore up the legal profession's public image, see Terence C. Halliday, Beyond Monopoly: Lawyers, State Crises, and Professional Empowerment 92–93 (Chicago: University of Chicago Press, 1987) (cited below as Halliday, Beyond Monopoly).Google Scholar

59 By 1920, all but 13 states had adopted the CPE but in most cases only by bar association resolution. Armstrong, Walter P. Jr., “A Century of Legal Ethics,” 64 ABA J. 1063, 1064–65 (1978).Google Scholar

60 See ABA Special Comm. to Secure Adoption of the Code of Professional Responsibility, “Report,” 97 ABA Rep. 268, 268–72 (1972).Google Scholar

61 Bates v. State Bar of Arizona, 433 U. S. 350 (1977).Google Scholar

62 Goldfarb v. Virginia State Bar, 421 U. S. 773 (1975).Google Scholar

63 United Trans. Union v. State Bar of Michigan, 401 U. S. 576 (1971); United Mineworkers of America, Dist. 12 v. Illinois State Bar Ass'n, 389 U. S. 217 (1967); Bhd. of R. R. Trainmen v. Virginia State Bar, 377 U. S. 1 (1964); NAACP v. Button, 371 U. S. 415 (1963).Google Scholar

64 CPR DR 9–101(B) prohibits former government lawyers from working on matters they had worked on in government; DR 5–105(D) prohibits all lawyers in a firm from taking cases that other DRs prohibit any lawyer in the firm from handling.Google Scholar

65 See, e. g., RKO General, Inc., 58 F. C. C. 2d 435, 437 (1976).CrossRefGoogle Scholar

66 ABA Comm. on Ethics and Professional Responsibility, Formal Op. 342 (1975).Google Scholar

67 See ABA Special Committee to Secure Adoption of the Code of Professional Responsibility, “Report,” 97 ABA Rep. 268 (1972).Google Scholar

68 On the balkanization of CPR provisions on lawyer advertising after the Bates decision, see Wolfram, 62 Minn. L. Rev. 619, 635 n. 65 (cited in note 37).Google Scholar

69 SEC v. Nat'l Student Mktg. Corp. No. 225–72 [1971–72 Transfer Binder] Fed. Sec. L. Rep. (CCH) para. 93,360 (D. D. C. Feb. 3, 1972). See also Roberta Karmel, “Attorneys' Securities Law Liabilities,” 27 Bus. Law. 1153 (1972).Google Scholar

70 See CPR DR 7–102(B)(1).Google Scholar

71 ABA Comm. on Ethics and Professional Responsibility, Formal Op. 341 (1975).Google Scholar

72 Kramer, Victor, “Clients' Frauds and Their Lawyers' Obligations: A Study in Professional Irresponsibility,” Clients' Frauds and Their Lawyers' Obligations: A Study in Professional Irresponsibility,” 67 Geo. L. J. 991 (1979).Google Scholar

73 See Model Rules 1.11(a); 4.1(b).Google Scholar

74 On the gradual opening up of state judicial rulemaking proceedings to interest groups other than the organized bar, see Charles W. Grau, Judicial Rulemaking: Administration, Access and Accountability 49–70 (Chicago: American Judicature Society, 1978) (cited below as Grau, Judicial Rulemaking). Until recently, the Wisconsin supreme court expressly delegated authority to the ABA to make ethics rules governing law practice in Wisconsin. Wis. S. Ct. Rules Rule 10.14 (1980) (rules of professional conduct set forth “from time to time” by the ABA shall be the standards governing the practice of law in Wisconsin).Google Scholar

75 See Head, Indian, Inc. v. Allied Tube & Conduit Corp., 108 S. Ct. 1931 (1988) (effort to influence professional association safety standards that are routinely adopted by state and local governments not immune from antitrust scrutiny); American Soc'y of Mechanical Eng'rs, Inc. v. Hydrolevel Corp., 456 U. S. 556 (1982) (restrictive professional code provisions actionable under federal antitrust law).Google Scholar

In 1976, the Justice Department sued the ABA for conspiracy to restrain trade by adopting, distributing, and (through ethics opinions) aiding in the enforcement of the CPR, which severely restricted lawyer advertising and solicitation. The suit was dropped in 1978, but only after the ABA promised no longer to promote or aid in the enforcement of the CPR. See “Justice Department Charges Code Advertising Provisions Violate Federal Antitrust Laws,” 62 ABA J. 979 (1976); “Justice Department Dismisses Antitrust Suit Against American Bar Association,” 64 ABA J. 1538 (1978).Google Scholar

76 This risk materialized in 1979, when ATLA decided to draft a rival code. See infra notes 193–220 & accompanying text. In most states, however, the ATLA code has never received serious consideration as a comprehensive alternative to the Model Rules.Google Scholar

77 See, e. g., Berlant, Jeffrey, Profession and Monopoly: A Study of Medicine in the United States and Great Britain 64–127 (Berkeley: University of California Press, 1975).Google Scholar

78 Id. at 69.Google Scholar

79 In medicine, ouster from the AMA and local societies could have real economic consequences; for many years membership was a prerequisite for hospital privileges. Paul Starr, The Social Transformation of American Medicine 168 (New York: Basic Books, 1982).Google Scholar

80 Armstrong, 64 ABA J. 1063, 1064 (cited in note 59).Google Scholar

81 Hurst, James Willard, The Growth of American Law: The Lawmakers 289 (Boston: Little, Brown & Co., 1950).Google Scholar

82 Dickinson, Jacob M., “President's Address,” 33 ABA Rep. 341, 356 (1908). See also Jacob M. Dickinson, Remarks Introducing the Report of the ABA Committee on Canons of Ethics, id. at 55, 56. Dickinson's interest in formal adoption of the CPE as law throws into doubt the thesis advanced by some scholars that the ABA ethics codes have evolved from wholly unenforceable moral norms to wholly enforceable law. See, e. g., Murray Schwartz, “The Death and Regeneration of Ethics,” 1980 ABF Res. J. 953, 953–54. While the CPE certainly became law in fewer jurisdictions than its successor code, the CPR, the reason may have nothing to do with the tenor of the two codes. It may simply be that early in the century state supreme courts were much less apt to recognize or use their rulemaking power. See Grau, Judicial Rulemaking (cited in note 74).Google Scholar

83 Dickinson, Jacob M., “President's Address,” 33 ABA Rep. 356 (1908). For a similar account of the ABA leadership's motives in waging a campaign in the 1910's against Progressive legislation calling for judicial recall, see Botein, Stephen, “‘What We Shall Meet Afterwards in Heaven’: Judgeship as a Symbol for Modern American Lawyers,” in Gerald L. Geison, ed., Professions and Professional Ideologies in America (Chapel Hill: University of North Carolina Press, 1983).Google Scholar

84 See Olson, Mancur, The Logic of Collective Action: Public Goods and the Theory of Groups (Cambridge: Harvard University Press, 1965).Google Scholar

85 Some bar leaders did, however, grasp the point intuitively before Olson's book. In 1938, the American Judicature Society pointed out that “the bar associations which are vigorous and growing are the associations which have newsy journals.”“State Bar Associations Need Members,” 22 J. Am. Judicature Soc'y 41 (1938).Google Scholar

86 Salisbury, Robert H., “Why No Corporatism in America?”in Philippe C. Schmitter & Gerhard Lehmbruch, eds., Trends Toward Corporatist Intermediation 213 (Beverly Hills, Cal.: Sage Publications, 1979).Google Scholar

87 Curiously, there are such organizations at the state level in the 33 jurisdictions that have a unified bar. See Schneyer, Theodore J., “The Incoherence of the Unified Bar Concept: Generalizing from the Wisconsin Case,” 1983 ABF Res. J. 1.Google Scholar

88 See Grossman, Joel B., Lawyers and Judges: The ABA and the Politics of Judicial Selection (New York: John Wiley, 1965). See also Public Citizen v. United States Dep't of Justice, 109 S. Ct. 2558 (1989) (despite semiofficial status of ABA Standing Committee on the Federal Judiciary, Federal Advisory Committee Act construed not to require open meetings). On the ABA's vigorous campaign to maintain its role in federal judicial selection in the face of sharp criticism of its allegedly politicized 1987 evaluation of Supreme Court nominee Robert Bork, see Morgan, Terence, “For ABA Judges Panel, Time of Reckoning Nears,”Legal Times, Feb. 20, 1989, at 5, col. 1.Google Scholar

89 Since 1936, the ABA has been organized partially as a federation of state, local, and some specialty bars. To this extent the ABA is at the apex of the bar structure in the United States. Quintin Johnstone & Dan Hopson, Jr., Lawyers and Their Work: An Analysis of the Legal Profession in the United States and England 38 (Indianapolis: Bobbs-Merrill, 1967).Google Scholar

90 In 1982, for instance, corporate house counsel formed their own professional organization. See infra notes 230–36 & accompanying text.Google Scholar

91 Wright, Edward L., “The Code of Professional Responsibility: Its History and Objectives.” 24 Ark. L. Rev. 1, 2 (1970).Google Scholar

92 See, e. g., Frankel, Marvin, “The Search for Truth: An Umpireal View,” 123 U. Pa. L. Rev. 1031 (1975).Google Scholar

93 See Frank, Jane Lakes, “Legal Services for Citizens of Moderate Income,”in Murray Schwartz, ed., Law and the American Future 116 (Englewood Cliffs, N. J.: Prentice-Hall, 1976).Google Scholar

94 Being so well represented, the legal services community was able for the first time to place language in an ABA ethics code responsive to its distinctive problems. It is now clear, for example, that a lawyer may pay litigation costs for an indigent client without looking to the client for reimbursement. Compare Model Rules Rule 1.8(e)(2) with CPR DR 5103(B). Early Model Rules drafts contained a “good samaritan” rule that would have allowed lawyers to provide service, “despite limitations” on their competence, in situations of “emergency or special [client] need.” Legal services lawyers succeeded in removing the term 'special need,” fearing that administrators in legal services offices might use it to force them to provide second-class representation. See Journals, Kutak Commission, Aug. 25, 1978 [cited below as Journals]. (These journals contain the “minutes” of commission meetings, but they rarely show who on the commission favored or opposed particular positions, and do not always indicate the precise date on which a meeting was held.) See also Model Rules Rule 1.1 comment para. 3.Google Scholar

95 Other charter members included Robert McKay and Samuel Thurman, law professors who (like Ehrlich and Hazard) may have exposed the commission to the charge of being too “academic,” and Howell Heflin, just off the Alabama supreme court and well enough connected in Democratic politics to leave the commission in a few months for the U. S. Senate. Heflin was replaced by Arno Deneke of the Oregon supreme court. Having a state supreme court “seat” on the commission was perhaps a concession to the ultimate goal of getting the Model Rules adopted at the state level.Google Scholar

Other lawyer-members added later were William Spann, from the end of his ABA presidency till he died in 1981; Robert Hetlage, an ABA leader and private practitioner who was appointed along with two nonlawyers; and L. Clair Nelson, house counsel for a large company.Google Scholar

96 Journals, Feb. 24, 1978. This meant that what had so far been an ABA committee had to be reconstituted as a commission. Under ABA by-laws nonmembers could not serve on ABA committees.Google Scholar

97 Id. Adding public members to its committees has become the bar's preferred way to bring lay opinion into bar deliberations. The practice is open to the charge of “tokenism” precisely because the lay members, in addition to being far outnumbered, typically have no clear constituency to represent. See generally Henry S. Kariel, The Decline of American Pluralism 264–65 (Stanford, Cal.: Stanford Univ. Press, 1961).Google Scholar

98 Interview with Geoffrey Hazard (Indianapolis, Mar. 30, 1985).Google Scholar

99 Journals, Feb. 24, 1978.Google Scholar

100 Interview with Geoffrey Hazard (cited in note 98).Google Scholar

101 See Model Rules Rule 1.5(b).Google Scholar

102 Journals, Feb. 23, 1979.Google Scholar

103 NOBC Proposed Amended Rules (cited in note 8).Google Scholar

104 At a public hearing in Atlanta on March 3, 1980, there were more members of the commission present than witnesses to testify, and all the witnesses were lawyers. Scott Slonim, “‘Lawyer as Cop’ Rule May Face Trimming,” 66 ABA J. 438 (1980).Google Scholar

105 Journals, June 29, 1979.Google Scholar

106 Letter from Geoffrey Hazard to Robert Kutak (Dec. 23, 1980).Google Scholar

107 Journals, Feb. 23, 1979.Google Scholar

108 Greenhouse, Linda, “Lawyers' Group Offers a Revision in Code of Ethics: Draft Says Client Interests Could Be Placed Second,”N. Y. Times, Feb. 2, 1980, at 6, col. 1 (late city edition).Google Scholar

109 Id. Google Scholar

110 See Robinson, Timothy, “Proposed Ethics Code Gives Clients a Break,”Washington Post, Feb. 4, 1980, sec. C, at 1, col. 1 (emphasizing, however, unlike the Times, the draft's positive treatment of consumer protection issues).Google Scholar

111 “A License to Squeal?”Wall St. J., Feb. 11, 1980, at 20, col. 1. Otis Smith, vicepresident and general counsel to General Motors took the similar position that Model Rule 1.13 was crossing over the line between legal ethics and corporate governance. In his view the proper relationship between company and counsel is a matter for each company and its counsel to work out. Smith, “The Proposed Model Rules of Professional Conduct” (Oct. 8, 1980) (speech to the 19th Annual Corporate Counsel Institute).Google Scholar

112 CPR EC 5–18.Google Scholar

113 Model Rules Discussion Draft Rule 1.13.Google Scholar

114 Letter from Robert Kutak to the editors of the Wall Street Journal (Feb. 20, 1980).Google Scholar

115 Journals, Feb. 1978.Google Scholar

116 Nader, R. & Green, M., eds., Verdicts on Lawyers (New York: Crowell, 1976).Google Scholar

117 Journals, Apr. 1978.Google Scholar

118 See supra note 33 & accompanying text.Google Scholar

119 Memorandum from the Society of American Law Teachers' Liaison Committee to the ABA Commission on the Evaluation of Professional Standards (Dec. 1, 1978).Google Scholar

120 Id. at 2.Google Scholar

121 See Model Rules Rules 1.2(c), 1.16(b)(3).Google Scholar

122 Letter from Robert Kutak to Members of the ABA House of Delegates (Oct. 31, 1977).Google Scholar

123 Letter from Robert Kutak to Members of the Kutak Commission (Nov. 30, 1978). See also “Lawscope,” 65 ABA J. 887 (1979).Google Scholar

124 Letter from Robert Kutak to Selected Readers of the Commission's first complete “precirculation” draft and List of Readers (Aug. 2, 1979).Google Scholar

125 Letter from Robert Kutak to commission members (Feb. 19, 1979) (noting the “lag” problem).Google Scholar

126 Journals, Dec. 1977.Google Scholar

127 Letter from Donald Evans to Robert Kutak (Feb. 16, 1978).Google Scholar

128 Interview with Robert McKay (Indianapolis, Mar. 30, 1985).Google Scholar

129 The Discussion Draft provided that if the highest authority in an organization insists upon action or a refusal to act that is “clearly a violation of law and is likely to result in substantial injury to the organization,” the lawyer may take further remedial action, including disclosure of confidential information as necessary, if the lawyer reasonably believes such action will be “in the best interest of the organization.”Model Rules Discussion Draft Rule 1.13(c).Google Scholar

130 See Letters from Charles Halpern, Director of the Georgetown Institute, to Robert Kutak (Feb. 26, 1979; Dec. 14, 1979). In the late 1970s the Institute proposed that the SEC adopt rules requiring corporate counsel to (among other things) report company illegalities to the agency. In 1980, the SEC rejected the Institute's proposals pending ABA adoption of ethics rules on the subject. Bill Winter, “Whistleblowing Rule Rejected by SEC,” 66 ABA J. 704 (1980); Ruth Marcus, “SEC: Ethics Dilemma a Bar Issue,”Nat'l L. J., May 12, 1980, at 3, col. 1.Google Scholar

The Kutak Commission always rook Rule 1.13 as a statement of duty to organizational clients which, because they are artificial entities acting solely through agents, sometimes present difficulties analogous to those lawyers face in representing incompetent clients whose guardians may be acting against their interests. Compare Model Rules Discussion Draft Rule 1.13 with id., Rule 1.14 (client under a disability). The Georgetown Institute, on the other hand, sought to impose disclosure duties on corporate lawyers in order to protect the investing public and perhaps the general public from corporate wrongdoing.Google Scholar

131 Interview of Geoffrey Hazard (cited in note 98).Google Scholar

132 Letter from Donald Evans to Robert Kutak (Aug. 27, 1980).Google Scholar

133 See Aultman, Mark, “Legal Fiction Becomes Legal Fantasy,” 7 J. Legal Prof. 31, 44 (1982).Google Scholar

134 Model Rules Rule 3.2(a)(3)(iii) (Jan. 25, 1979 draft).Google Scholar

135 See, e. g., CPR DR 7–106(B).Google Scholar

136 See Frankel, 123 U. Pa. L. Rev. 1031, 1057 (cited in note 92). Signs of Frankel's influence in the final version of the Model Rules are few: a novel but specialized adverse disclosure duty for lawyers in ex parte proceedings, Model Rules Rule 3.3(d), and perhaps a negative pregnant in the Preamble statement that “when an opposing party is well represented, a lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice is being done.”Id., Preamble para. 7.Google Scholar

137 See Frank, 17 Stan. L. Rev. 683, 698 (cited in note 51).Google Scholar

138 Model Rules Rule 5.1 (Jan. 25, 1979 draft).Google Scholar

139 Journals, Aug. 27, 1978.Google Scholar

140 See supra notes 42–43 & accompanying text. Comments in the January 1979 draft made a crucial reference to uncontested divorce as an area in which an intermediary would sometimes be appropriate. The intermediary concept survived the Model Rules process; the divorce reference did not. See Model Rules Rule 2.2 & comment. It was opposed by the NOBC on the ground that it would complicate enforcement of the conflict-of-interest rules, and by divorce lawyers in the ABA Family Law Section on the ground that it is nonsense to speak of “representing” two clients in their dealings with one another if they are at least formally adversaries. Letter from Richard Crouch to Robert Kutak (July 7, 1981).Google Scholar

141 Model Rules Rule 4.4 (Aug. 1979 draft).Google Scholar

142 CPR DR 7–102 (A) (7).Google Scholar

143 See supra notes 45–47 & accompanying text.Google Scholar

144 See Schwartz, Murray, “The Professionalism and Accountability of Lawyers,” 66 Cal. L. Rev. 669 (1978). The counselor's and negotiator's stepped-up duty to third parties was dropped by 1981 on the ground that unconscionability is so vague a standard that its use in a disciplinary rule might chill appropriate conduct and give lawyers too little notice of what could subject them to discipline. Letter from Geoffrey Hazard to Robert Kutak (Jan. 12, 1981).Google Scholar

145 See supra note 41 & accompanying text.Google Scholar

146 Model Rules Rule 9.1 (Aug. 1979 draft).Google Scholar

147 Many lawyers considered the proposal a misguided effort to turn professional virtue into necessity. Others saw the shortage of legal services to the poor as a social, not a professional, problem; they thought lawyers had no greater duty to represent the needy than grocers have to feed them. Some even said mandatory pro bono was unconstitutional peonage. See Humbach, John H., “Serving the Public Interest: An Overstated Objective,” 65 ABA J. 564 (1979). And so, when the August 2, 1979 draft was leaked and published in the trade press (see “The Record: Text of Initial Draft of Ethics Code Rewrite Committee,” Legal Times, Aug. 27, 1979, at 26 col. 1), the reaction within the bar was dramatic. By the January 1980 Discussion Draft, the mandatory rule had been watered down to require only an annual report of one's pro bono work, with no clear definition of what counted and no floor on the time to be given. Model Rules Discussion Draft Rule 8.1. When it became clear that many lawyers were still “furious” about the rule (Journals, June 28, 1980), even the reporting requirement was dropped. See Model Rules Rule 6.1 & Comment.Google Scholar

148 Memorandum from L. Ray Patterson to Robert Kutak (Jan. 30, 1979).Google Scholar

149 Walzer, Philosopher Michael argues that effective social or political criticism typically avoids novel arguments and “external” norms and relies instead on reinterpreting the texts and principles of the community being criticized, as when Martin Luther King, Jr., invoked the Christian principles of whites and blacks alike in calling for desegregation. Walzer, Michael, Interpetation and Social Criticism (Cambridge: Harvard University Press, 1987).Google Scholar

150 Letter from Monroe Freedman to the editor of the National Law Journal (Sept. 2, 1979).Google Scholar

151 “Ethics Draft Ignites Uproar,”Nat'l L. J., Aug. 27, 1979, at 1 col. 1.Google Scholar

152 See supra note 147.Google Scholar

153 “Ethics Draft Ignites Uproar,”Nat'l L. J., Aug. 27, 1979, at 1, col. 1.Google Scholar

154 Interview with Geoffrey Hazard (cited in note 98).Google Scholar

155 ABA Comm'n on Evaluation of Prof'l Standards, Report to the House of Delegates (June 30, 1982) (app. D).Google Scholar

156 See Comm. on Code of Professional Ethics, Final Report, 33 ABA Rep. 567, 570–71 (1908).Google Scholar

157 Id. Google Scholar

158 Letter from Robert Kutak to bar leaders (Dec. 5, 1980).Google Scholar

159 Id. at 3–5.Google Scholar

160 See Shklar, Judith N., Legalism (Cambridge: Harvard University Press, 1964).Google Scholar

161 Id. 1–2, 8.Google Scholar

162 Halliday, Beyond Monopoly 227–45 (cited in note 58); Terence Halliday, “The Idiom of Legalism in Bar Politics: Lawyers, McCarthyism, and the Civil Rights Era,” 1982 ABF Res. J. 911.Google Scholar

163 Letter from Robert Kutak to bar leaders, at 3–5 (Dec. 5, 1980).Google Scholar

164 See CPR DR 7–106 (B) (1).Google Scholar

165 Model Rules Discussion Draft Rule 1.7(b).Google Scholar

166 Letter from Robert Kutak to bar leaders, at 5 (Dec. 5, 1980).Google Scholar

167 The CPR permitted but did not require lawyers to disclose a client's intention to commit any crime. CPR DR 4–101(C)(3).Google Scholar

168 Tarasoff v. Regents of Univ. of California, 17 Cal. 3d 425, 551 P.2d 334 (1976).Google Scholar

169 For one decision relying on Tarasoff to support a lawyer's duty to disclose, see Hawkins v. King County, 24 Wash. App. 338, 602 P.2d 361 (1979).Google Scholar

170 17 Cal. 3d 425, 442–43, 551 P.2d 334, 347. See AMA Principles of Medical Ethics sec. 9 (1957) (doctor may disclose patient confidences when necessary “in order to protect the welfare of the individual or of the community”).Google Scholar

171 Cf. Comment, “Evans v. Jeff D. and the Proper Scope of State Ethics Decisions,” 73 Va. L. Rev. 783 (1987).Google Scholar

172 See supra note 130 & accompanying text.Google Scholar

173 Cooney, Gordon, Memorandum to Committee on Counsel Responsibility and Liability, ABA Section of Corporation, Banking and Business Law 6–7, 38–40 (Aug. 4, 1978) (emphasis added).Google Scholar

174 See supra notes 127–32 & accompanying text.Google Scholar

175 Letter from Loeber Landau to Robert Kurak (Jan. 18, 1982).Google Scholar

176 Wolfinger, Garner V., 430 F.2d 1093 (5th Cir. 1970), cert. denied 401 U. S. 974 (1971).Google Scholar

177 Report of Comm. on Corporation Law Departments, ABA Section of Corporation, Banking and Business Law (n. d.) (enclosed with the letter cited in note 175).Google Scholar

178 430 F.2d at 1104.Google Scholar

179 CPR DR 5–18.Google Scholar

180 Report of the Committee on Corporation Law Departments (cited in note 177).Google Scholar

181 Model Rules Rule 1.13 Comment para. 3. Garner, however, has received a vote of confidence in early drafts of a proposed Restatement on the law of lawyering. See Institute, American Law, Restatement of the Law Governing Lawyers sec. 134 & Comments (Tentative Draft No. 2, Apr. 7, 1989) (cited below as ALI Restatement). If this holds up in later drafts, it may suggest either that the ALI drafting process is significantly different from the ABA's, or that power in the ABA and ALI is distributed differently, with the ALI perhaps relying more heavily on legal scholars. Either hypothesis, if correct, might have policy implications for how and where lawyers' ethics codes should be prepared in the future.Google Scholar

182 “Unlawful obstruction” here presumably referred to laws on obstruction of justice as well as the rules of civil discoverv. See Model Rules Rule 3.4 Comment 2.Google Scholar

183 Ass'n of the Bar of the City of New York, Executive Committee, Statement Concerning the Substance of the Model Rules of Professional Conduct 22 (Mar. 3, 1982). The extra “unlawfully” found its way into the final version. See Model Rules Rule 3.4(a).Google Scholar

184 The power to expedite, wrote one legal services lawyer, must never be used to “expedite a disadvantageous result for the client.” Letter from Alan Houseman, Director of the Legal Services Corporation Research Institute, to Geoffrey Hazard 5 (Nov. 29, 1979). Overall, legal services lawyers were as committed as any interest group within the bar to the Standard Conception. They argued, for example, that lawyers for a defendant in a civil action (say, a suit for back rent) should have as much latitude to put plaintiffs to their proof as criminal defense lawyers have to put prosecutors to theirs. Id. at 5.Google Scholar

185 Journals, Dec. 15, 1978.Google Scholar

186 See Carrizosa, Phillip, “Kutak Rules are Totally Rejected at Bar Convention,”LA. Daily J., Sept. 30, 1980, at 1, col. 2; Letter from Board of Governors, State Bar of California to ABA House of Delegates (June 8, 1982); Angel Castillo, “New York Bar Group Rejects Overhaul of Ethics Code,”N. Y. Times, Nov. 2, 1980, at 45, col. 4 (late city edition).Google Scholar

187 Government agencies had to make similar decisions. A few including the U. S. Department of Justice filed comments on the published Model Rules drafts, but none made a sustained effort to influence the development of the Model Rules. The Antitrust Division of the Justice Department and the Federal Trade Commission had a special interest in rules on fees, advertising, solicitation, group legal services, and law firm ownership, yet they did little lobbying. But see Letter from Ass't Attorney General Jonathan Rose to Robert Kutak (July 23, 1984). Perhaps reluctant to participate in making rules it might later have to challenge, the Antitrust Division saved its criticisms for a 1984 letter to the state supreme courts, which were then considering the Model Rules for local adoption. See Taylor, Stuart, Jr., “U. S. Criticizes ABA's Lawyer Code,”N. Y. Times, Sept. 25, 1984, sec. D, at 17, col. 1 (late city ed.). The letter expressed concern about Model Rule 1.5, which requires legal fees to be “reasonable.” The division thought the Rule might stifle price competition. When an ABA ethics opinion read Rule 1.5 to impose a fee ceiling but no floor, the division withdrew its criticism. See “News and Background: Antitrust Division, ABA Move Toward Agreement on Rules,” 1 Lawyers' Manual 612 (Current Reports No. 27, Jan. 23, 1985) (cited in note 13).Google Scholar

188 Slonim, Scott, “Kutak Commission Ethics Draft Draws Early Fire,”Bar Leader, Mar. -Apr. 1980, at 2. For one such standard, see supra note 134 & accompanying text.Google Scholar

189 See NOBC Proposed Amended Rules (cited in note 8). See also National Organization of Bar Counsel, Report on a Study of the Proposed ABA Model Rules of Professional Conduct with Recommendation (Aug. 2, 1980) (critique of Model Rules Discussion Draft).Google Scholar

190 See National Organization of Bar Counsel, Report of the Special Review Committee on the Proposed Final Draft of the Model Rules of Professional Conduct 1 (June 4, 1982).Google Scholar

191 Id. at 3.Google Scholar

192 Id. at 15.Google Scholar

193 Association of Trial Lawyers of America, “Join the Most Effective Lawyers' Association Bar None” (n. d.) (promotional brochure).Google Scholar

194 But not the sharp differences over business-getting activities such as solicitation that the “conflict” critics of the earlier ABA codes might have predicted. See supra notes 38–40 & accompanying text.Google Scholar

195 “Trial Lawyers Group Parts Company with ABA on Ethics Code, Specialization,” 65 ABA J. 1299 (1979). Through the 1970s ATLA and the ABA had often disagreed on another political front-how to respond to calls for federal no-fault automobile legislation. See Philip B. Heymann & Lance Liebman, The Social Responsibilities of Lawyers: Case Studies 309–35 (Westbury, N. Y.: Foundation Press, 1988).Google Scholar

196 See Letter from Richard Lempert to Geoffrey Hazard (June 25, 1979).Google Scholar

197 ACC Discussion Draft (cited in note 8).Google Scholar

198 “Trial Lawyers Group Parts Company with ABA on Ethics Code, Specialization,” 65 ABA J. at 1300 (1979). Kutak was implying that only the ABA could successfully promote an ethics code for adoption by the state supreme courts.Google Scholar

199 Commission on Professional Responsibility, Roscoe Pound-American Trial Lawyers Foundation, The American Lawyer's Code of Conduct (Revised Draft, May 1982).Google Scholar

200 Pressman, Steven, “Trial Lawyers not Highlighting Their Own Code of Conduct,”Daily Reporter, Aug. 11, 1980, at 1.Google Scholar

201 ACC Discussion Draft 106 (cited in note 8).Google Scholar

202 See id., Preamble at 3 (defining the public as “the actual and potential clients whom we serve”).Google Scholar

203 Koskoff, Theodore J., “Introduction to the American Lawyer's Code of Conduct,” Trial, Aug. 1980, at 46, 47 (emphasis added).Google Scholar

204 Id. at 46.Google Scholar

205 ACC Discussion Draft at 5.Google Scholar

206 Koskoff, Theodore J., “President's Page,” Trial, Jan. 1980, at 4, 6.Google Scholar

207 Model Rules Discussion Draft Rule 1.7(b).Google Scholar

208 Id, Rule 1.7(c)(2).Google Scholar

209 ACC Discussion Draft Rules 1.2, 1.4 (Alternative “A”).Google Scholar

210 See Model Rules Rule 1.6.Google Scholar

211 Lumbard, 30 Cath. U. L. Rev. 249, 271 (cited in note 37).Google Scholar

212 For an attack on Frankel and his disclosure-oriented influence on early drafts of the Model Rules, see Freeman, Milton V., “Lawyer's Duty Should Be to Client, not Government,”Legal Times, Aug. 25, 1980, at 11, col. 1.Google Scholar

213 Remarks of Kutak Commission member Robert Hetlage on the Acceptance of the Model Rules around the Country (ABA National Conf. on Prof'l Responsibility, May 31, 1985). See also Pendlebury, L. J., “ABA Model Conduct Rules Rejected by New York Bar,”Legal Times, Nov. 11, 1985, at 3, col. 1.Google Scholar

214 Freedman, Monroe H., “Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions,” 64 Mich L. Rev. 1469 n.1 (1966). See also “The Professor and the Judge,” Cal. Lawyer, July 1986, at 57.Google Scholar

215 “Midyear Meeting of American Bar Association,” 51 U. S. Law Week 2488, 2489 (Feb. 22, 1983) (cited below as “Midyear Meeting”).Google Scholar

216 Id. Google Scholar

217 S. 485, 98th Cong., 1st Session (1983).Google Scholar

218 See The Lawyer's Duty of Disclosure Act: Hearings on S. 485 Before the Subcomm. on Criminal Law of the Senate Comm. on the Judiciary, 98th Cong., 1st sess. (Apr. 28, 1983) (statement of Kutak Commission member Robert Hetlage); id. (statement by George Bushnell on behalf of the ABA).Google Scholar

219 Letter from Theodore Koskoff to Ellen Dreibilbus (Mar. 24, 1983). Meserve denies this. Interview with Robert Meserve (Chicago, May 2, 1986). Koskoff charged in the same letter that the Kutak Commission regularly tried to get ABA delegates to accept its positions by arguing that failure to do so would invite outside intervention in the regulation of the bar.Google Scholar

220 Statement of Monroe Freedman, Hearings on the Lawyer's Duty of Disclosure Act (cited in note 218).Google Scholar

221 Letter from Thomas Lumbard to Charles Kettlewell (May 25, 1982).Google Scholar

222 Letter from Kurt Melchior to various bar leaders (Jan. 10, 1983).Google Scholar

223 ABA Center for Professional Responsibility, The Legislative History of the Model Rules of Professional Conduct: Their Development in the ABA House of Delegates I (Chicago: American Bar Association, 1987) (cited below as Legislative History).Google Scholar

224 Landau, W. Loeber, “Section Supports Adoption of Proposed Model Rules of Professional Conduct,”Business Law Memo, Nov.-Dec. 1982, at 1.Google Scholar

225 Id. at 2.Google Scholar

226 See letter from Hector Reichard de Cardona, Att'y Gen'l of Puerto Rico, to Robert Meserve (Feb. 10, 1983); Letter from Robert Meserve to Geoffrey Hazard (Feb. 17, 1983) (“I think we are going to have to do something for our friends who are attorneys general, etc. I would be glad to have your ideas as to how we can keep them happy”); Model Rules, Scope para. 4.Google Scholar

227 See Letters from Antonin Scalia, Section Chair, to Robert Kutak (May 28, 1982); to Judith Smith of the ABA staff (June 9, 1982).Google Scholar

228 See ABA Judicial Administration Division, Report to the ABA House of Delegates 1 (June 1982); Model Rules Rule 8.2 Comment.Google Scholar

229 See Letter from R. Amster to Robert Kutak (Dec. 2, 1981); Model Rules Rule 1.15 Comment.Google Scholar

230 See note 95 supra.Google Scholar

231 See Model Rules Proposed Final Draft Rule 5.4 (cited in note 10).Google Scholar

232 See Schaefer, C. Barry, “Proposed Model Rule 5.4: Is It Necessary for Corporate Staff Counsel?” 15 Creighton L Rev. 639 (1982); Letter from William Beringer, vice-president and general counsel of Siemens-Allis, Inc., to ABA (Oct. 30, 1981). The rule was also opposed by the ABA Patent Law Section, many of whose members are in-house lawyers.Google Scholar

233 Schaefer, “Proposed Model Rule 5.4,” passim (cited in note 232). See also Schneyer, Ted, “Professionalism and Public Policy: The Case of House Counsel,” 2 Geo. J. Leg. Ethics 449, 481–83 (1988) (pointing to signs of status anxiety and heightened status consciousness among today's house counsel).Google Scholar

234 Curran, Barbara A., Rosich, Katherine, Carson, Clara, & Puccetti, Mark, Lawyer Statistical Report: A Statistical Profile of the U. S. Legal Profession in the 1980s 19 (Chicago: American Bar Foundation, 1985).Google Scholar

235 Graham, Deborah, “Corporate GC's Consider Group,”Legal Times, Feb. 8, 1982, at 3.Google Scholar

236 Billard, Mary, “Inside Moves,”Am. Law., May 1985, at 30.Google Scholar

237 See text accompanying notes 77–83 supra.Google Scholar

238 For brief discussions of this phenomenon and its possible implications, see Charles W. Wolfram, Modern Legal Ethics 59–60 & nn. 62–66 (St. Paul, Minn.: West Publishing Co., 1986); Schwartz, 1980 ABF Res. J. 953 (cited in note 82).Google Scholar

239 Journals, October 26, 1979; Legislative History at 40 (cited in note 223); Comments by Frederick Fisher for the ABA General Practice Section at Kutak Commission public hearing on the Model Rules Discussion Draft (Honolulu, July 5, 1980).Google Scholar

240 Comments on the Proposed Final Draft by Loeber Landau of the Committee on Counsel Responsibility and Liability of the ABA Corporation, Banking and Business Law Section (Sept. 21, 1981).Google Scholar

241 See Stewart, James B., The Partners: Insidee America's Most Powerful Law Firms 23 (New York: Simon & Schuster, 1983).Google Scholar

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243 Interview of Robert Meserve (cited note 219).Google Scholar

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245 Id. at 7.Google Scholar

246 Id. Google Scholar

247 Letters from Robert Kutak to Alston Jennings (May 28, 1982; July 9, 1982).Google Scholar

248 Legislative History 47–48 (cited in note 223).Google Scholar

249 Id. at 50.Google Scholar

250 “Midyear Meeting” at 2489 (cited in note 215).Google Scholar

251 Freedman, Monroe, “Lawyer-Client Confidence: The Model Rules' Radical Assault on the Traditional Role of the Lawyer,” 68 ABA J. 428 (1982); Stuart Taylor, Jr., “Ethics and the Law: A Case History,” N. Y. Times (Magazine), Jan. 9, 1983, at 31, 36 (quoting ACTL President-Elect John Elam).Google Scholar

252 American College of Trial Lawyers, Code of Trial Conduct sec. 5(b) (1972).Google Scholar

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254 See supra notes 168–70 & accompanying text.Google Scholar

255 “Midyear Meeting,” at 2489.Google Scholar

256 Model Rules reporter Geoffrey Hazard stresses the difference between the ACTL and the ABA Corporation Section perspective on issues of confidentiality. See note 131 & accompanying text supra.Google Scholar

257 American College of Trial Lawyers, Report of the Legal Ethics Committee on the May 30, 1981 Proposed Final Draft of the Model Rules of Professional Conduct 25–26 (Apr. 2, 1982).Google Scholar

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260 Interview with Geoffrey Hazard (cited in note 256).Google Scholar

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262 “Midyear Meeting” at 2491.Google Scholar

263 Id. at 2492.Google Scholar

264 Id. Google Scholar

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266 Interview with Geoffrey Hazard (cited in note 98).Google Scholar

267 Blustein, Paul & Penn, Stanley, “OPM Fraud Raises Questions About Role of a Criminal's Lawyer,”Wall St. J., Dec. 31, 1982, at 1; Stuart Taylor, Jr., “Ethics and the Law: A Case History,”N. Y. Times (Magazine), Jan. 9, 1983, at 31.Google Scholar

268 Gandossy, Roberr P., Bad Business: The OPM Scandal and the Seduction of the Establishment 221 (New York: Basic Books, 1985).Google Scholar

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272 Model Rules Rule 1.6 Comment (withdrawal, para. 3).Google Scholar

273 Rotunda, Ronald, “The Notice of Withdrawal and the New Model Rules of Professional Conduct: Blowing the Whistle and Waving the Red Flag,” 63 Ore. L. Rev. 455 (1983).Google Scholar

274 “Lawyers for Hire for Anything?”N. Y. Times, Feb. 11, 1983, sec. A, at 26 (final city edition).Google Scholar

275 Margolick, David, “Reporter's Notebook: Law's Majesty v. Mardi Gras,”N. Y. Times, Feb. 11, 1983, sec. A, at 8, col. 3 (final city edition).Google Scholar

276 Thus, in response to the criticism that some CPR restrictions on representing clients with potentially conflicting interests amounted to featherbedding, the Model Rules expressly permit lawyers to serve at times as “intermediaries” between two or more clients. See Model Rules Rule 2.2.Google Scholar

277 Rhode, Deborah, “Ethical Perspectives on Legal Practice,” 37 Stan. L. Rev. 589, 616 & n. 97 (1985).Google Scholar

278 Comments of the ABCNY Executive Committee on the Proposed Final Draft (Nov. 4, 1981).Google Scholar

279 See Hazard, Geoffrey, “The Legal and Ethical Position of the Code of Professional Responsibility,” in 5 L. Hodges, ed., Social Responsibility: Journalism, Law, Medicine (Lexington, Va.: Washington & Lee University, 1979).Google Scholar

280 See National Organization of Bar Counsel, Report of the Special Review Committee on the Proposed Final Draft of the Model Rules of Professional Conduct 15–16 (June 4, 1982) (calling for reinstatement in the Model Rules of CPR rules sanctioning: “illegal conduct involving moral turpitude”; conduct involving “dishonesty, fraud, deceit or misrepresentation”; and conduct “prejudicial to the administration of justice”).Google Scholar

281 E. g., New Mexico Childrens' Code sec. 32–1–15 (Michie 1986); Okla. Crim. Code sec. 846 (v. 21 West Supp. 1985–86).Google Scholar

282 26 U. S. C. A. sec. 6050 I (1984).Google Scholar

283 Letter from Daniel Goelzer to Special Committee of the D. C. Bar Studying the Model Rules of Professional Conduct (Jan. 25, 1984).Google Scholar

284 Journals, Aug. 25, 1978. The rule was ultimately adopted. See Model Rules Rule 1.4.Google Scholar

285 Interview with Geoffrey Hazard (cited in note 98). The solicitude may have been unnecessary. Working through the ABA General Practice Section, sole practitioners and small-firm lawyers had enough clout to kill a proposed rule to facilitate the delivery of legal services by allowing lawyers for the first time to form law partnerships with nonlawyers. They did so by raising the specter of department store lawyers replacing the traditional forms of small-firm practice. “Midyear Meeting” at 2493 (cited in note 215).Google Scholar

286 See Heinz, John P. & Laumann, Edward O., Chicago Lawyers: The Social Structure of the Bar (New York: Russell Sage Foundation; Chicago: American Bar Foundation, 1982).Google Scholar

287 ABA Standing Committee on Lawyers' Professional Liability, Comments on the Proposed Final Draft 6 (Jan. 20, 1982).Google Scholar

288 Id. at 3.Google Scholar

289 Legislative History 20–21 (cited in note 223). The final version provides that the Model Rules “are not designed to be a basis for civil liability…. [N]othing in the Rules should be deemed to augment any substantial legal duty of lawyers or the extra-disciplinary consequences of violating such a duty.”Model Rules Scope para. 6.Google Scholar

290 See ABA Commission on Evaluation of Professional Standards, Report t o the House of Delegates 6 (Jan. 30, 1982) (commission revised “Scope” section in response to suggestions by the Standing Committee and the New York State Bar Ass'n).Google Scholar

291 See United States Dep't of Health, Education & Welfare, Report of the Secretary's Commission on Medical Malpractice 15–16 (1973) (fears of physicians about their potential liability for rendering emergency aid are “undoubtedly real” but “appear to be based on little more than rumor or hearsay”).Google Scholar

292 Cf. Peterson v. City of Long Beach, 24 Cal. 3d 238, 155 Cal. Rptr. 360, 594 P.2d 477 (1979) (sued for wrongful death on theory that policeman who shot deceased violated rules in the police manual, city argued unsuccessfully that manual should not be used to set standard of care since that would deter police departments from making rules).Google Scholar

293 Journals, Oct. 1, 1977.Google Scholar

294 In early 1979, the chair of the ABA Standing Committee on Association Standards for Criminal Justice informed Hazard and Kutak that his committee would propose no changes in Defense Function Standard 4. 7–7, dealing with the problem of client perjury, until the commission had time to tackle the problem. Letter from Ken Hodgson to Geoffrey Hazard (Jan. 1979). For the commission's solution to the problem see Model Rules Rule 3.3(a), (b).Google Scholar

295 American Bar Association, Standards Relating to the Administration of Criminal Justice (2d ed.; Tentative Draft approved Feb. 12, 1979, Boston: Little, Brown & Co. 1982).Google Scholar

296 See supra notes 172–74 & accompanying text.Google Scholar

297 See supra notes 215–18 & accompanying text.Google Scholar

298 See supra note 185 & accompanying text.Google Scholar

299 This general bias became quite explicit at the ABA's Midwinter 1989 meeting, when the House of Delegates approved a resolution sponsored by the ABA Special Coordinating Committee on Professionalism. The ABA resolved to oppose “all regulation of the practice of law by executive or legislative bodies, whether national, state or local.” See “American Bar Association Midwinter Meeting,” 57 U. S. Law Week 2478, 2480 (Feb. 21, 1989).Google Scholar

300 In 1976, the ABA president crusaded for a bar-administered mandatory pro bono program. His pitch for the program ended this way: “[T]imely actions by the organized bar recognizing that each and every lawyer must do some public service are essential if substantial self-regulation by lawyers is to continue.” Smith, Chesterfield, “Lawyers Who Take Must Put–At Least a Bit,” 1 J. Legal Prof. 27, 31 (1976).Google Scholar

301 John Curley, “Lawyers Squabble about a New Code of Ethics,”Wall St. J., Feb. 6, 1981, at 44, col. 1.Google Scholar

302 See, e. g., 5 Hum. Rts. 1, 5 (cited in note 46).Google Scholar

303 “Report of the Joint Conference of the American Bar Association and the Association of American Law Schools on Professional Responsibility,” 44 ABA J. 1159 (1958).Google Scholar

304 See CPR ECs 7–3, 7–5.Google Scholar

305 Journals, Aug. 25, 1978. See also L. Ray Patterson, “Wanted: A New Code of Professional Responsibility,” 63 ABA J. 639 (1977); Geoffrey Hazard, Memorandum to the Kutak Commission regarding Basic Problems for a Code of Professional Responsibility (Mar. 10, 1978).Google Scholar

306 Model Rules Rules 3.1–3.9.Google Scholar

307 Id., Rule 2.1.Google Scholar

308 Id., Rule 2.2.Google Scholar

309 Id., Rule 2.3.Google Scholar

310 See, e. g., Kaufman, Andrew, “A Critical First Look at the Model Rules of Professional Conduct,” 66 ABA J. 1074, 1076 (1980); Letter from Professor Thomas Morgan to Geoffrey Hazard (Oct. 8, 1979) (tentative division of lawyer's role into a set of specific functions not proving to be successful).Google Scholar

311 The commission itself recognized the drafting problem even before its Discussion Draft was completed. See Journals, Apr. 27, 1979. They wondered, for example, whether a lawyer negotiating a personal injury settlement is like the negotiator of business contracts or should instead be considered an advocate since the matter has already ripened into a lawsuit. Id. Google Scholar

312 Journals, Oct. 27, 1979 (commission decided to “retreat from its functional analysis” to the extent of consolidating the rules on conflict of interest). See Model Rules Rules 1.1 (competence), 1.6 (confidentiality), 1.7 (conflicts).Google Scholar

313 Compare Model Rules Discussion Draft 86–93 with Model Rules Proposed Final Draft Rules 4.1–4.4.Google Scholar

314 Journals, Apr. 27, 1979 (commission reluctant to abandon completely its “functional approach”).Google Scholar

315 See ALI Restatement sec. 117 Comment b para. 2 (cited in note 181); Lawyers' Manual 01:11–01:30 (No. 75, Mar. 15, 1989) (cited in note 13).Google Scholar

316 Compare, e. g., Model Rules Rule 1.13 Comment 3 with ALI Restatement sec. 134 & Comment (role of attorney-client evidentiary privilege in shareholder derivative suits); Model Rules Rule 1.6(b)(1) with ALI Restatement secs. 117A–117B (scope of permission to use confidential information to prevent client crimes).Google Scholar

317 See, e. g., Schwartz, Murray L., “Death and Regeneration of Ethics,” 1980 ABF Res. J. 953 (noting the modern proliferation of specialty bar organizations, and their relative advantiage in achieving ethical comsensus among members). Of course, when it comes to adoption of the Model Rules at the state level, the support of the state bar association remains crucial. The ABA was able to produce the Model Rules despite full-scale opposition from the California State Bar and the New York State Bar associations, but the Model Rules are unlikely to be adopted in California and New York. See “Model Rules Jolted: New York Rejects ABA Proposal,”ABA J., Jan. 1986, at 18. In 1982, when the Board of Governors of the California State Bar resolved to oppose the Model Rules in toto and forwarded their resolution to the ABA House of Delegates, they assumed that without State Bar approval California would never adopt the Model Rules. They purportedly took an interest in the Model Rules only because “such rules will have an impact upon the California lawyer who practices in other state jurisdictions and in federal courts.” Letter from Mary Wailes, Secretary of the State Bar of California, to the ABA House of Delegates (June 8, 1982).Google Scholar

318 See supra note 285.Google Scholar

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323 See id., Rule 6.2 Comment (no duty to represent any particular client).Google Scholar

324 Id., Rule 1.2(c).Google Scholar

325 Id., Rules 1.16(b)(3), 1.16(c).Google Scholar

326 Legislative History 103 (cited in note 223).Google Scholar