Missed Opportunities: Louisiana s Version of the Rules of Professional Conduct

• Author: N. Gregory Smith
• Position: Associate Professor, Louisiana State University Law Center

Associate Professor, Louisiana State University Law Center. Many thanks to my colleagues James W. Bowers, Christopher L. Blakesley, Saul Litvinoff, Lucy S. McGough, Warren L. Mengis, and Katherine S. Spaht, for their comments on prior drafts, or portions of prior drafts, of this article; to Geoffrey C. Hazard, Jr., for his insights on the ABA's comments to Rule 8.4 of the Model Rules of Professional Conduct; to Pascal F. Calogero, Jr., Chief Justice of the Louisiana Supreme Court, for permission to use documents generated by the Louisiana Supreme Court; to Wallace D. Riley, former President of the American Bar Association, and the American Bar Association, for permission to use documents generated by the American Bar Association; to John C. Combe, Jr., and Robert E. Leake, Jr. for background information about the work of the Louisiana State Bar's Task Force to Evaluate the ABA Model Rules of Professional Conduct; to Charles B. Plattsmier, Chief Disciplinary Counsel for the State of Louisiana, for access to background papers on the development of the Louisiana Rules of Professional Conduct; to John Kelly and the Special Collections Department of the Earl K. Long Library at the University of New Orleans for access to papers of John A. Dixon, Jr., former Chief Justice of the Louisiana Supreme Court; to Loretta L. Topey, Executive Director of the Louisiana State Bar Association, for permission to use documents generated by officers and committees of the Louisiana State Bar Association; and to Lori L. Ruello, of the Louisiana State Bar Association, for access to records of the House of Delegates and the Board of Governors of the Louisiana State Bar Association.

I Introduction

We are entering a period of potentially significant changes in the rules that govern the conduct of lawyers. The American Law Institute has just published its new Restatement of the Law Governing Lawyers.¹ It contains a number of provisions that significantly depart from conventional codes of lawyer conduct.² An American Bar Association commission, called the Ethics 2000 Commission, has just completed an extensive review of one of the ABA's own products-the Model Rules of Professional Conduct.³ The Commission's report calls for significant changes in the rules.⁴ Other efforts are underway that could result in changes to existing ethics rules.⁵ These developments at the national level will eventually encourage Louisiana and other states to re-evaluate their own rules on lawyer conduct. They will create a climate for change.

Something like this happened not too long ago. In 1983, the American Bar Association promulgated the Model Rules of Professional Conduct.⁶ Those rules were substantially different from the Model Code of Professional Responsibility,⁷which Louisiana, and most other states, had used as a model for their own rules on lawyer conduct.⁸ Most states eventually followed the lead of the American Bar Association, and patterned their lawyer codes on the Model Rules.⁹ Louisiana was no exception. It adopted the new Rules of Professional Conduct in 1986.¹⁰ But Louisiana did not entirely follow the ABA's lead. While it adopted most of the ABA's black-letter rules,¹¹ it did not adopt some significant elements in the ABA's model. In particular, Louisiana did not adopt the Preamble, Scope, and Terminology sections that appeared at the front of the ABA's Model Rules of Professional Conduct. Nor did Louisiana adopt the comments that followed each of the ABA-drafted rules. In omitting these materials, Louisiana missed some opportunities.

The climate of change will provide Louisiana with an opportunity to rethink some of the decisions that were made in 1986-decisions regarding what was and what was not included in the Louisiana Rules of Professional Conduct. This article focuses mainly on the materials in the ABA's model that were not included. It calls them "omitted materials." Not all of the omitted materials should have been adopted in Louisiana, but most of them should have been. Some of the omitted materials could help Louisiana lawyers understand the rules that are used to define lawyer misconduct. Others reach beyond standards of discipline and articulate higher ideals for the legal profession. Some of the omitted materials contain important substantive rules relating to lawyer conduct. And some of them provide useful instruction about the nature of legal ethics. In short, the omitted materials contain much that is good. Louisiana missed the opportunity to take full advantage of them in 1986. It ought to take advantage of them now.

II How We Got To This Point

A Emergence of The Model Rules of Professional Conduct

We should begin with a brief discussion of the ABA model and how it came to be. In particular, it will be helpful to know some basic things about the nature and structure of the Model Rules of Professional Conduct and how the Model Rules differ from earlier codes of legal ethics. This will provide a useful background for a discussion of Louisiana's 1986 adoption of the Rules of Professional Conduct.

1. The Model Rules Contrasted With Earlier ABA Codes of Ethics

The Model Rules of Professional Conduct were adopted by the American Bar Association in 1983.¹² It was the ABA's third code of legal ethics,¹³ and it was significantly different from the first two. The ABA hoped that the Model Rules would eliminate some of the problems that had arisen with the earlier codes, and that states would see fit to base their own lawyer codes on the new model.¹⁴

a The Canons of Professional Ethics

The first ABA code, the Canons of Professional Ethics, was adopted on August 27, 1908.¹⁵ These Canons of Ethics covered a number of matters, including conflicts of interest, fixing fees, punctuality, advertising, contact with parties represented by counsel, and a lawyer's duty to the courts.¹⁶ However, the Preamble to the Canons indicated that they were intended more to be statements of principle than to be a codified collection of disciplinary rules.¹⁷Indeed, the Canons had a pronounced inspirational or hortatory thrust.

For example, the Canons stated that lawyers should have a "respectful attitude" toward the courts;¹⁸ that it was "indecent" for a lawyer during trial to mention the "personal peculiarities and idiosyncrasies of counsel";¹⁹ and that the lawyer "should strive at all times to uphold the honor and to maintain the dignity of the profession and to improve not only the law but the administration of justice."²⁰ The Canons stated that "a lawyer will find his highest honor in a deserved reputation for fidelity to private trust and to public duty, as an honest man and as a patriotic and loyal citizen."²¹ The Canons expressed many ideals, but they did not express many standards for lawyer discipline.

b The Model Code of Professional Responsibility

The Model Code of Professional Responsibility was adopted by the American Bar Association in 1969 to deal with that deficiency.²² The Model Code was more complicated than the Canons. It was prefaced by a Preamble and Preliminary Statement. It included sections called "Canons," "Ethical Considerations" and "Disciplinary Rules." These three things, according to the Preliminary Statement, "define the type of ethical conduct that the public has a right to expect."²³ But they were very different. The Canons were described as "statements of axiomatic norms."²⁴ They expressed standards of conduct in very general terms. The Ethical Considerations...