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Evolving Guidance: Professional Standards Over the Years

Lawyers admitted to practice in Pennsylvania in 1988 or later have always looked for guidance to the Pennsylvania Rules of Professional Conduct. But these Rules weren’t always the standard of practice. Two other codes preceded the RPCs as the legal profession’s governing prescriptions.

For much of the Twentieth Century, the legal profession operated under the Canons of Professional Ethics. First adopted by the American Bar Association (ABA) in 1908, the Canons were a loose set of 32 rules and recommendations, often phrased in aspirational terminology such as “the lawyer should...” These rules were arranged in an order that seems arbitrary to modern eyes, and often contained very little mandatory language to specify to lawyers exactly what they could and couldn’t do. All the language in the Canons about client funds, for instance, was contained in the 39 words of Canon 11, which stated in full:

Money of the client or other trust property coming into the possession of the lawyer should be reported promptly, and except with the client’s knowledge and consent should not be commingled with his private property or used by him.

In contrast, the current RPC 1.15, Safekeeping Property, contains 2,871 words.

The Canons formed the basis for disciplinary action for nearly sixty years, during a time when most disciplinary prosecutions took place before Courts of Common Pleas, often at the initiation of local bar associations.

The legal profession went through a period of upheaval and innovation on the front of legal ethics in the 1960s. Last week, we highlighted the work of the Clark Committee whose landmark 1970 report summarized many of the failures of the fragmented discipline systems in the various states, and made recommendations which have become the foundation of attorney professional discipline systems throughout the United States.

While the Clark Committee focused on procedures, a parallel effort to revise the substance of the standards also took place during the late 1960s and early 1970s. In 1964, the ABA President and later Supreme Court Justice Lewis F. Powell requested the formation of a Special Committee on Evaluation of Ethical Standards to examine the Canons of Professional Ethics and to make recommendations for changes. Over the following five years, this committee produced a draft document called the Model Code of Professional Responsibility. The document followed the prior standard by stating aspirational Canons, but followed them up with mandatory Disciplinary Rules and Ethical Considerations which clarified and expanded on the Disciplinary Rules, much as the Comments to today’s Rules of Professional Conduct do. On August 12, 1969, the ABA House of Delegates adopted the ABA Model Code of Professional Responsibility. Most of the states followed up by adopting their own Code of Professional Responsibility, as did Pennsylvania in 1970. When the Disciplinary Board began its work in 1972, it enforced the Code of Professional Responsibility.

The Disciplinary Rules provided much more concrete guidance and mandatory requirements than the Canons of Ethics. For instance, DR 9-102, although it ran only 263 words in the ABA Model Code, established many of the principles now incorporated into requirements for the handling of funds, such as separation of lawyer and client funds, notice of receipt of funds, recordkeeping, accounting, and delivery of funds when due.

Although the Disciplinary Rules proved far more effective than their predecessor, dissatisfaction quickly arose, much of it growing from the critical focus on the actions of lawyers during the Watergate era. In 1977, the ABA empaneled a new Commission on Evaluation of Professional Standards, headed by Robert J. Kutak, which became known as the Kutak Commission. After almost three years of work, the Kutak Commission concluded that the Code of Professional Responsibility was inadequate, and composed a new code, the Model Rules of Professional Conduct, published in January 1980. The ABA House of Delegates adopted the Model Rules of Professional Conduct in August 1983. Over the next several years, most jurisdictions adopted the new Rules, including Pennsylvania, effective April 1, 1988.

The Rules of Professional Conduct, as amended over the years, have proven a durable and effective set of standards for the profession, remaining in effect for 34 years. The work of the Kutak Commission proved to be of lasting benefit to the legal profession.

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