An Overview and Analysis of the Sew Rules of Professional Conduct for Army Lawyers

• Author: by Major Bernard P. Ingold
• Pages: 01

1. INTRODUCTION

   In October 1987 The Judge Advocate General of the Army pro-mulgated a new set of rules ta govern the conduct of all uniformed and civilian Army attorneys.' The new rules (hereinafter Army Ruled replace the ABA Model Code of Profeessional Conduct, which had for over a dozen years served as the standard of ethical responsibility for Army lawyers? The new Army Rules are generally based on the ABA Model Rules with several changes to accommodate pemlianties of military practice.'

   This article begins by reviewing the history of ethical standards far lawyera in this country up through adoption of the ABA Model Rules of Professional Canduet. The article addresses some of the common

   'Judgs Advocate Generapa Corps Cwrently a*signsd a8 ~nafiuetor.

   Administrative

   and Civll Law Divlsmn. The Judge Advocate General's School Formerly assigned 88 Defense Appellate Attorney, Branch Chief, and Supreme Court Coordinator. Defense Appellate Dwinon, US Army Legal Services Agency, 1982-1986: Chief, Legal Asas-tance. Admimstrmve Law Officer, and Rocuremem Caunael, Fort Devens, Yas-saehusefts. 1919.1982 Author ofRerint Reform zn DLCOIC~

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   Worse, 12GMil L Rev 203 11986) Buymg,Seiling ~ ~ d R a n a n g r k F ~ m , i y X ~ ~

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   Canaepuincss /or Ihe MblUa!y Imxpqei Afim Ihr 1986 Ter Reform Act, The Amy Laver, October 1987, at 23,Diseaumng andRemouing IheBlueed Coun Member, TheArmy Laxyer. January 1986, at 32 B G S , Unirernity of .Mlrhigan 1915: J D , Uni-versify af Arkansas at Fayetbuille. 1979, LL M I The Judge Advocate Generah School. 1988 Memberofthe barsaftheState ofArkenss8,theU S Supr~maCourt.rhe U.S Court of Military Appeals, and the US. Amy Court of M~lllary Rcvmw

   'Dep't of Army Pam 21-26, Legal Service8 Rules of Profesmonal Conduct for Lawyers 131 Dec 1987) Ihereinsfler R P C 1 The Amy WBI the firat service to adopt the ABAModel Rules of Profmianal Condvct The New adopted a modlhed versmn af the Model Rules m Novamb~r 1987. but ~f dld not meludi the comments that aceompany the Model Rules The ne-, Amy Rules _e applicable v1 all attorneys certdfied by The Judge Advocate General. laxyere employed by the Army, and CIYIII~OL pmcfmng

   In em*-m*rt~sl.

   'The Madel Code of Rofeasional Responsbhty was made applicable 0 Army attor. neys by regulation Army Reg 27.3, hgal Servms Legal Aes~stanee. p ~ r a

   1-9 11 Apr.

   1884) [hereinafter AR 27-31 In 1973 The Judge Advocate General adopted the Model Code to govern the conduct of lawyers partmpatmg m courts-mart~al.

   In 1962 the

   Modal Code was mads applicable to 811 A m y laryers

   'The Army Rules weie draned by an inter-service committee appointed m 1984 by the service Judge Advocate Generals For a hmtory of tha development of the aervloe rules see Albertmn, Rules oft'rofesslanal Conduct for the Naml dud#- Adroeair, 36 Fed Bar Kews & J 331 (1988)

   criticisms made about the Model Rules and considers uhether these Rules are appropriate for Arm)- Implementanon. Part 111 contains an Imdepth analysis of each rule in the nea Arm) Rules The article eoncludea ~n Part I\' by evaluating the Army Rules and by making some recommendations for improvement

   11. HISTORY OF LEGAL ETHICS PROFESSIOAVAL RESPOAVSIBILITY

   1. THE ABA MODEL CODE OF

      There was no formal attempt to codify rules of professional standards for the legal profession until 1887, when Alabama adopted the Canona of Professional Responsibility Although several other stares subsequently passed codes, there was no uniformity in the standarde being adopted. In 1908, after a three-year atudy. the Amencan Bar Association promulgated the Canons of Profeessmnal Ethics." Theae Canons, though frequently amended. survived for over one-half of a century Although they uere criticized for being duplicative, too vague for adequate enforcement. and devoid of clearthere was no movement to reform the rules until 1964, when a special committee of the ABA began work on drafting a new code of ethics The committee completed Ita work in 1969, and the ABA promulgated a new set of disciplinary rules, the Model Code of Profeessmnal Responsibility, which for the first time provided mandatory standards ' Most of the sates adopted the Model Code within the next few years wth only minor modifications

      A unique innovation of the new Code WBS the dirmon into three parts' Canons, Ethical Considerations IEC'. and Disc~plinary Rules OR,. The nine canons were general restatements taken from the predecessor canons. The Ethical Considerations were intended to be aspirational goals for the legal profession The mandatory provisions of the Code were contained in the Disciplinary Rules

      The tripartite division of the Code never worked as it8 drafters

      'Armsrrong,A Cenlun o/L?gnlEihm,SIABA J 1063 19788 TheieCanonswere largely based on the efforts ai two 19th ienfur) legal rcholarr George Sharsuaad Dean ai the Dmrers~ru of Pennsyliama Supreme Court, and another legal ethics ex-pert, David Hoffman, a Baltimore arfome)

      'Canmi oCProfesnana1 Ethic8 ,19081 These rdei *ere propored by the ABA andadopted m >armus formi by rhe irate3 The rule3 were lareely patterned airer the Canons adapted b) the Alabama bar443 44; 81965,bllalrer. .?r O ~ ~ i ~ i e i i afthe ModelRuin of Pmfezsiooal Cinducr 24 Wlarhbum L IModel Code ai Piofernanal Re.pnnshll>fi 1969, lherelnairer ilodel Love1

      19891 RULES OF PROFESSIONAL CONDUCT

      Intended.' Although the Code represented a needed move toward clearer standards and an emphasis on Stricter enforcement, confusion existed among members of the bar on how to interpret the separate provisions of the Code. The distinctions between Ethical Considerations and Disciplinary Rules were often blurred, leading to unevenenforcement among the states. Moreover, the Code was largely ineffectual m dealing with the problems of lawyers committing negligence, engagmg In marginal misconduct, and charging exees~ive feea *

      Several internal inconsistencies exacerbated the difficulties m resorting to the Code to resolve ethical problems For example, Canon 4 exhorted attorneys to hold Secrets and confidences of a client inviolate lo Code provision DR 1.102 required disclosure, however, of a elient'e past fraud to a tribunal or an affected person." Subsequently, In response to the conflict, DR 7-102 was amended to prohibit disclosure of any information "otherwise privileged."" This amendment completely negated DR 7-10XB)because the phrase "otherwise privileged was construed to cover all information a lawyer had about the case

      Another shortcoming of the Code ias its failure to effectively control lawyer advertising and commeremlmtmn This shortcoming led the Supreme Court to declare several prohibitions unconstitutional The Supreme Court has, for example, struck down the blanket suppression of lawyer advertisement," the broad prohibition against lawyer solicitation," and the regulations against group legal

      ."

      ",'For B complete analyna of the Cade'a hhortcommgs m this regard nee Walter An Ourrnta ofthriioddRule6 ~iPi~iosslona1Candvrt

      24 WashburnL J 460-61 rl&'?%del Code DR 4-101 11981)

      "hladsl Code DR 7-1021Bi111 '19891"Madel Code DR 7-102fB1111 A majority of 8raTei refused to adapt this amendmenr Far B diecunaion of this lbme Bee Giffiln and Mlaaon The '\'e* ABA Ethics Rule8 A Change for 1hrBlld 39 J Mo Bar 534 119831

      "Bates Y Anmna, 433 US 360, reh% &"Led, 431 U 5 881 (19771''In re R M J ,455 U S 191 (19821 (amended DR 2-101 held unconmtvtmnel state? can prohihit advertising only lf It id inherently mlaleadingl, Oralik Y Ohia Sriw Bar Asm ,436 US 447,mh'gdmird, 439 U S 883 119781 ,lauyerb ~n-person ioliiitafmn ai

      employmenr could be pmhlhlied even m the absence of rpec~fic harm) in n hmua. 436 US 412 (19781 (bahcltatlen of ~mspedlve litigants by nonprufi/ organizations which engaged in litigation as a form of pdltical expreslon aovld not he completely resfrictedl

      s e r ~ c e s . ~ ~

      As a result of these decisions the ABA moved to amend the Code nine times.''

   2. THE ABA MODEL RULES OF PROFESSIONAL CONDUCT

      Although in existence for only slightly over a decade. the ABA Code quickly became in need of overhaul. A developing consensus of the bar was that the substantive rules of the Code envisioned law practice in a simplistic litigatwe setting not related to modern legal reality." Moremer, many provmons of the Code were rendered obsolete by Supreme Court cases and other developments. Finally, the division of the Code into three statements was largely a failure.

      The process of developing a new set of rules began in 1977 nhen the ABA appointed a commission to reexamine the Model Code" Although the commission concluded that the Code was m need of comprehensive revision, they did not set out to establish an entire new body of law. Rather, they incorporated the legal pnnmples can. tained in case law and the Code. The drafters did, however, close some gaps, clarify several ambiguities, and completely revise the format and structure of the Code."

      In August 1983, after six yeam of debate, the ABA approved the new Model Rules.zo Since then over one-half of the states have adopted some version of the Model Rules to regulate the conduct of licensed attorneys.21

      'Vnited lrannpor'tatian Union v Sfate Bar of Michigan, 401 U S 676 119711 Court held ~ n ~ ~ n m m f i ~ n d an atrempr to prohibit ai solicitation a union from advising members to secure legal aer~iceil

      "The Madel Code was amended ~n 1970, 1974. 1976, 1976, 1977. 1970 1879 and twice in 1980 American Bar Asaociatlon. Annotated Code of Rofensional Responshl-IlY, Preface (19821

      '-R .Aronsan. J Devine. & \V F'laeh. Problema. Canes snd Mate

      UBQ knaKn informally 83 the Kutak Comrnisamn The Commission publiahed 1t8 first draft on January 30, 1980peneraily Kufak, Eialuoiing h r Proposed Mndrl Ruler of Profe6rtonai Con-duet 1980 Am B Found Res d 1016

      "The ABA House of Delepates adopted the Model Rules of Professional Canducr onAugust 2, 1983 G Hazard & W Hodea, The Law of Lawyennp A Handbook on the Model Ruler af...