The Access and Justice Imperatives of the Rules of Professional Conduct

• Author: Eli Wald
• Position: Charles W. Delaney Jr. Professor of Law, University of Denver Sturm College of Law
• Pages: 375-427

The Access and Justice Imperatives of the Rules of

Professional Conduct

ELI WALD*

ABSTRACT

The rules of professional conduct are the backbone of legal ethics. The pri-

mary objective of legal ethics, and thus of the rules, is protecting clients, the

legal system, the public, and justice. Increasingly, however, the rules fail at pro-

tecting the public and advancing justice. The problem does not lie with a partic-

ular rule. Rather, the rules are based on antiquated assumptions, which no

longer reflect some of the fundamental needs of clients and the public nor the

practice realities of lawyers. To fulfill their objective, the rules must address the

contemporary needs of clients and the public: they must help address the prob-

lem of insufficient access to lawyers for those who cannot afford to pay for legal

services, and they must meaningfully address widespread forms of inequality,

including gender and racial injustices.

The Article explains and rejects the legal profession’s traditional defense

of the rules pursuant to which lawyers are three-legged stools who effectively

balance the interests of clients, the legal system, and the public. Instead, the

Article advances the best possible defense of the rules, an account in which

lawyers serve the public by serving clients and advancing the Rule of Law but

shows that this account is unsustainable given contemporary practice real-

ities. Prevalent insufficient access to lawyers, changing power dynamics

between clients, lawyers, and non-lawyers, and persistent injustices mean that

lawyers can no longer credibly claim to indirectly serve the public by serving

paying clients. Rather, the rules should be revised to mandate that lawyers

increase access to legal services and pursue justice directly. The Article con-

cludes by developing an access and justice-driven agenda for reforming the

rules.

* Charles W. Delaney Jr. Professor of Law, University of Denver Sturm College of Law. This Article is

dedicated to the late Deborah Rhode, a giant of legal ethics, a mentor, a friend, and a tireless advocate for

increased access to legal services for those who cannot afford to pay for them, as well as a more just legal pro-

fession. I thank Arthur Best, Nora Freeman Engstrom, Russ Pearce and David Wilkins for their feedback, and

Michelle Penn, faculty services liaison at the Westminster Law Library at the University of Denver Sturm

College of Law, for her outstanding research assistance. A special thanks to Bruce Green for his meticulous

reading of an earlier draft and many excellent suggestions and comments, which have improved this Article.

© 2022, Eli Wald.

375

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377

I. THE RULES, LEGAL ETHICS AND ETHICS: UNPACKING A

TERMINOLOGICAL MESS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379

II. WHO IS SERVED BY THE RULES? THE ABA’S TRADITIONAL

ANSWERS, CRITICISMS, AND THE BEST DEFENSE OF THE

RULES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 382

A. THE ABA’S ANSWERS: CLIENTS, THE LEGAL SYSTEM

AND THE PUBLIC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 382

B. UNDERSTANDING THE ABA’S CLAIMS ABOUT THE

RULES: THE IMPLICIT ASSUMPTIONS UNDERLYING THE

RULES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 386

C. THE TWENTIETH CENTURY’S CRITIQUES OF THE RULES . . 393

D. AN UNEASY STATUS QUO: THE RULES AT THE DAWN OF

THE TWENTY-FIRST CENTURY . . . . . . . . . . . . . . . . . . . . 395

E. THE BEST DEFENSE OF THE RULES: PROTECTING THE

PUBLIC BY PROTECTING CLIENTS . . . . . . . . . . . . . . . . . . 399

III. THE PRACTICE OF LAW IN THE TWENTY-FIRST CENTURY:

NEW CHALLENGES TO THE RULES . . . . . . . . . . . . . . . . . . . . . . 402

A. CONTEMPORARY PRACTICE REALITIES: THE PRO SE

CRISIS AND “LUMPING IT” IN THE INDIVIDUAL

HEMISPHERE, THE DECLINE OF OUTSIDE COUNSEL AND

THE DEMISE OF PROFESSIONAL STATUS IN THE

CORPORATE HEMISPHERE . . . . . . . . . . . . . . . . . . . . . . . . 402

B. THE RULES’ RESPONSE TO THE CHANGING LANDSCAPE

OF LAW PRACTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 409

IV. THE FUTURE: WHO IS AND SHOULD BE SERVED BY THE

RULES?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 414

A. CLIENTS AND LAWYERS UNDER THE RULES: THE ACCESS

IMPERATIVE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 415

B. CLIENTS AND LAWYERS UNDER THE RULES:

ACKNOWLEDGING THE DYNAMIC POWER RELATION

IMPERATIVE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 421

376 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 35:375

C. MODERN LAW PRACTICE: THE JUSTICE IMPERATIVE. . . . 423

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 426

INTRODUCTION

Who is being served by the Model Rules of Professional Conduct (Rules) and

their state counterparts?

1

The legal profession offers two types of answers to this

question. The short-version, traditional answer is that clients are protected by the

Rules.

2

This basic answer addresses an intuitive critique of the Rules: because

they are promulgated and enforced by the legal profession, the Rules likely pro-

tect lawyers and promote their self-interest at the expense of clients. This basic

answer, however, fails to address another critique of the Rules, pursuant to which

they advance the interests of clients at the expense of all others, including the

public and the public interest. The long-version, traditional answer offered by the

profession to the query “who is served by the Rules?” is clients, the legal system,

and the public.

3

The profession purports to support this by showing that the Rules

limit what lawyers can do for clients, as well as impose on lawyers duties as offi-

cers of the legal system and as public citizens, which curtail clients’ interests.

4

This Article argues that both of the profession’s answers are increasingly

strained in the twenty-first century. The crux of the problem is that the Rules are

based on a set of assumptions and generalizations about clients, lawyers, and law

practice that no longer holds true. Regarding clients, the Rules assume that those

with legal needs would ordinarily and naturally become paying clients. That is,

they assume relative unimpeded access to legal services. Further, following tradi-

tional agency law principles, the Rules assume that clients-principals are vulnera-

ble and in need of protection from their lawyers-agents. These assumptions

suggest that the Rules’ protection of clients is a desirable goal.

Contemporary practice realities have disproven these assumptions. The well-

documented challenge of insufficient access to legal services establishes that

many with legal needs do not become paying clients, at the same time as the

emergence of new classes of powerful clients flies in the face of the assumption

that all clients need protection from their lawyers. Combined, these developments

problematize the profession’s short-version answer.

1. See MODEL RULES OF PROF’L CONDUCT (2016) [hereinafter MODEL RULES].

2. MODEL RULES pmbl. cmts. 10–12; R. 1.7 cmt. 1 (“Loyalty [is an] essential element[] in the lawyer’s rela-

tionship to a client.”). See generally W. Bradley Wendel, Pushing the Boundaries of Informed Consent: Ethics

in the Representation of Legally Sophisticated Clients, 47 U. T

OL. L. REV. 39, 40 (2015); Vincent R. Johnson,

The Virtues and Limits of Codes in Legal Ethics, 14 NOTRE DAME J.L. ETHICS & PUB. POL’Y 25, 29–40 (2000)

(legal ethics codes, inter alia, protect clients); Ted Schneyer, Moral Philosophy’s Standard Misconceptions of

Legal Ethics, 1984 WIS. L. REV. 1529 (1984) (legal ethics rules protect clients from their lawyers).

3. MODEL RULES pmbl. cmt. 1 (“A lawyer, as a member of the legal profession, is a representative of clients,

an officer of the legal system and a public citizen having special responsibility for the quality of justice.”).

4. See generally infra Part II.A.

2022] ACCESS AND JUSTICE IMPERATIVES 377