[Guest Blogger Michael S. Ariens's posts on his new book, The Lawyer's Conscience, continues. DRE]
In 1977, when the ABA began another evaluation of ethical standards, the American legal profession was still reeling from the effects of the Watergate scandal, the increasing entry of baby boomers into the profession, and a concomitant fall in real income. The effect of Watergate on lawyers may have been best encapsulated by the uproarious laughter by the audience when disgraced White House counsel John Dean mused to a congressional committee (a hearing nationally televised) that "there certainly are an awful lot of lawyers involved" in criminal behavior related to Watergate. In an inflationary era, with lawyer supply rising every year, real median income would fall 21% during the 1970s. The public's perception of lawyers was poor, and the economic prospects of lawyers was declared "grim" in a 1972 Business Week article. The proposed (partial) solution to these troubles was to re-think standards of lawyer conduct.
The Kutak Commission (named for its chair, ABA insider Robert Kutak) charged with this task had two options: It could follow the alleged ethos of the 1969 Code, what the Kutak Commission's Reporter Geoffrey C. Hazard, Jr. called the "basic posture of 'my client, first, last and always,' [which] allowed little room for development of the attorney's role as an officer of the court." The other approach was to emphasize the "theme" of "lawyer autonomy," the lawyer as social trustee, as one who represented private clients as well as a "determinable public interest."
The breadth of the Kutak Commission's perceived mandate was made clear at a 1977 meeting of its members The unattributed comment of one member asserted, "[O]ur Committee ought not to hesitate to promulgate statements of ethics it believes to be correct but which may not meet with the general approval of the Bar." It was unclear how that member thought the Commission's proposals would be approved by the very "Bar" that apparently disapproved.
One consequence of Watergate was the view that sunlight was always the best disinfectant. Consequently, when Kutak sent a working draft to some interested ABA members ahead of its 1979 annual meeting, critics assailed the Commission for making only a limited release. Then they picked apart provisions of the working draft, though Kutak had emphasized that none of the provisions had been approved by the Commission, and the draft included "portions with which a majority disagree." A discussion draft was released by the Commission in early 1980. This draft emphasized that "lawyers are responsible to demands beyond those of their immediate clients."
Many who opposed the discussion draft rejected the Commission's rejection of the "basic posture." They equated the lawyer's duty to client and duty to the legal system. Relatedly, some critics considered duty to client and duty to the public interest as a zero-sum game. Thus, any duty to the public interest undermined the lawyer's duty to serve one's clients.
By the time the proposed final draft was released in May 1981, it had largely capitulated. Few references to "fairness" and to a duty to serve a determinable public interest remained. However, Kutak's introduction to this draft was steadfast in maintaining a lawyer was both a representative of a client and an officer of the court or of the legal system. Another year had passed when the final draft was sent to ABA leaders for discussion and vote at it 1982 annual meeting. The Commission portrayed the final draft as offering only a modest reform, shorn of all radical proposals. Nearly all references to the lawyer's duty to the public has disappeared, and the Commission's Report argued its rules "work[ed] no such shift in the profession's values."
Despite declaring defeat, the Commission's work was roundly criticized by the victors. The discussion in the House of Delegates in August 1982 was a disaster for the Commission. After lengthy debate, only one rule was adopted. When the ABA's Midyear Meeting rolled around in February 1983, Robert Kutak was dead from a heart attack, and the opponents of the Model Rules had filed 216 proposed amendments. The debate in the House of Delegates unveiled only extraordinary disagreement among lawyers about the social role of lawyers. An informal meeting of the disputants led to resolution, and the Model Rules of Professional Conduct were adopted by the ABA at its August 1983 meeting.
Even then, one delegate who may not have gotten the message proposed striking the following sentence from the hortatory Introduction: "Thus, 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." The delegate believed that any statement indicating a lawyer might look beyond the client's immediate interest was unsupportable. The proposed amendment failed, but the idea animating it had taken hold.
The Model Rules ignored ethical considerations; the Rules were about rules, standards below which no lawyer was to act. The inward turn of lawyers was complete; no lawyer was bound (or even encouraged) to inquire into any determinable public interest. Yet somehow bar leaders were surprised when lawyers, after adoption of the Model Rules, looked "at nothing but the rules."
