Document Type

Article

Publication Date

Spring 1993

Keywords

American Bar Association, Model Rules of Professional Conduct

Disciplines

Legal Ethics and Professional Responsibility | Legal Profession

Abstract

As important as is each of its parts, the 1983 Model Rules of Professional Conduct was, of course, meant to function as a whole. At the very least, the parts were presumably intended to work well with one another, sketching a regulatory apparatus that would guide both lawyers subject to it and courts and regulators administering it in a coherent and consistent manner. To a large extent the Model Rules made significant headway in this respect, continuing the movement toward more explicit and articulated regulation of the profession begun by their predecessor, the Model Code of Professional Responsibility.

Yet, the Model Rules have struggled toward perfection, rather than attaining it. In its shortcomings it simply shares features of other works of mere mortals. I explore here one of those areas of effort in which the Model Rules reflect defective drafting, that of presenting a regulatory text characterized by "integrity." I use that term in the sense of wholeness, of not being at war with oneself. I do not imply anything about intentional deviousness or the like, a wholly different sense in which "integrity" is also sometimes employed. As will be seen, in several respects the Model Rules significantly lacks integrity with respect to common or at least predictable, if uncommon, situations. I do not refer here to points too shrouded in the mists of the future or too exotic to permit or warrant clear statement. Instead, I refer to the Model Rules' violation of what we might refer to as the integration principle-the common-sense requirement that each part of a prescriptive document interconnect well and clearly with every other. Pursuing the ideal of the integration principle, a drafter will attempt to avoid confusion by neither seeming to omit coverage of an important point in apparently complementary provisions or perhaps worse, giving duplicate and potentially conflicting prescriptions for a common issue.

This canvas of the Model Rules under the lens of the integration principle is not, of course, intended to be exhaustive, although I hope to have captured the most important instances. I also wish not to be understood to insist that all of the issues I discuss here should have been detected and adequately dealt with before the Rules were locked into their present form in 1983. Neither the Kutak Commission, its reporter, nor the ABA House of Delegates had entire freedom and leisure to draft carefully and precisely. The inescapably untidy business of formulating standards through the political and bureaucratic sausage factory that is the ABA only makes one marvel to the contrary, that the document emerged in a form as nearly integral as it is. In a process such as the one that produced the Model Rules, only the reporters, active members of the drafting Kutak Commission, and perhaps a few critics would have been able to pay sufficient attention to the document as a whole to have noted integration problems in the document as it transmogrified into its final form. And, of course, paying attention and bringing noticed problems of incoherence to the attention of others does not always suffice to persuade others with other agendas to join forces to achieve appropriate language changes in a document caught up in what was essentially an unwieldy political-parliamentary process. Those seeking changes in drafts, such as those offering floor amendments in the ABA House of Delegates, typically insist on wording that responds to their own concerns, not the concern of achieving overall documentary integrity. In any event, even in a more relaxed, less politicized atmosphere, it would have been nearly miraculous if the Model Rules had not emerged from even that idealized process without some defects of integrity that only experience in applying and studying them would bring clearly to view.

Publication Citation

Published in: Georgetown Journal of Legal Ethics, vol. 6, no. 4 (Spring 1993).

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