To Provide a Common Conceptual and Linguistic Vocabulary in Order to Foster Ethics Dialogue and Education: the Nebraska Supreme Court Should Adopt the Revised Model Rules the "bright Line" Rule Example

• Publication year: 2021
• Citation: Vol. 81

81 Nebraska L. Rev. 1351. To Provide a Common Conceptual and Linguistic Vocabulary in Order to Foster Ethics Dialogue and Education: The Nebraska Supreme Court Should Adopt the Revised Model Rules The "Bright Line" Rule Example

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Stephen E. Kalish(fn*)

To Provide a Common Conceptual and Linguistic Vocabulary in Order to Foster Ethics Dialogue and Education: The Nebraska Supreme Court Should Adopt the Revised Model Rules The "Bright Line" Rule Example

TABLE OF CONTENTS

I. Introduction .......................................... 1351
II. The Issue ............................................. 1354
III. The Nebraska Rule ..................................... 1357
IV. Conclusion ............................................ 1361

I. INTRODUCTION

Thirty years ago, the Nebraska Supreme Court adopted the American Bar Association's 1969 Model Code of Professional Responsibility. The Model Code's structure was unique. There were nine axiomatic Canons, and, under each Canon, there were aspirational Ethical Considerations and mandatory Disciplinary Rules. In 1983, the ABA recommended states abandon its old Model Code and adopt its new Model Rules of Professional Conduct. There were important policy, conceptual, and linguistic changes in the new Model Rules. In 2002, the ABA revised the 1983 version of the Model Rules, and it now recommends states adopt these revisions to the Model Rules. Nebraska has kept the old Model Code.

There are many reasons why Nebraska ought to adopt the revised Model Rules. First, the ABA has carefully drafted the rules. They are the product of serious thought, investigation, comment, and deliberation. Nebraska, alone, could never duplicate this effort. Since there is

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nothing unique about Nebraska lawyering, Nebraska should defer to the ABA unless it has a well-considered reason for not doing so. Second, lawyers, including Nebraska lawyers, practice nationally. In to-day's world, geographic and political boundaries are increasingly unimportant. It makes sense that all American lawyers have the same ethical standards regardless of where they practice. There ought to be a common law for lawyers. Third, Nebraska lawyers need guidance in resolving important ethical and professional dilemmas. Nebraska is a small state, and it does not generate much judicial or advisory committee assistance. Practitioners must look elsewhere for guidance. Since most states have adopted the Model Rules, these jurisdictions will generate a large corpus of interpretive literature to guide Nebraskans.

Of course, there are responses to these positions. First, not everyone believes the ABA considered the Model Rules carefully or objectively. These commentators not only disagree with the ABA's perspective and policies, but they also note the Model Rules reflect extensive lobbying and compromise. Second, many states that have adopted the Model Rules have amended certain important Rules. There has been a "Balkanization," and the goal of a set of uniform lawyer ethics seems illusory. Third, if the Model Rules were not objectively and deliberately promulgated, or if there is too much variation among other states, then interpretive guidance from other jurisdictions will be unhelpful to Nebraska practitioners.

Regardless, the most important reason Nebraska should adopt the revised Model Rules is they provide a conceptual and linguistic vocabulary for ethics dialogue and education. Ethics codes are not merely regulatory rules. They have little impact on a lawyer's behavior.(fn1) They reflect, rather than construct, professional values and priorities. True ethics and professional attitudes come before any written codes. How zealous, for example, an advocate ought to be in a particular case will be resolved, one way or another, without resort to written ethics codes. How conflicting interests must be before they are disabling will also be decided without reference to a written code. Lawyers' trained intuitions will guide them to answers.

A vibrant ethics dialogue and education are important elements in the training of these professional intuitions. A written ethics code can generate and concentrate issues for thoughtful discussion. Discussions will not ramble, and the written code can provide a common conceptual and linguistic vocabulary. Debate and disagreements will be clear. The revised Model Rules will provide both.

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Ethics education begins early in a lawyer's career. Law students are introduced to professional ethics in mandatory law school courses, and it is the Model Rules, not Nebraska's version of the Model Code, that supplies the conceptual vocabulary. All teaching books use the Model Rules as the base for inquiry. Students are required to take a Multistate Professional Responsibility Examination that focuses on the Model Rules.

Early in their careers, lawyers develop conceptual and linguistic tools to help them engage important issues. It is not uncommon to hear students and lawyers talk about "information protected by Rule 1.6," rather than secrets and confidences. With the adoption of the revised Model Rules, students and lawyers will soon be debating the meaning of "informed consent," a word of art borrowed from medical ethics.

Students and lawyers, even Nebraska lawyers, are unfamiliar with the Model Code's format. They stumble as they work through untaught Canons, Ethical Considerations, and Disciplinary Rules. They do not grasp the meaning of the unfamiliar concepts and language. The Model Code's language is therefore not a working part of a Nebraska lawyer's conceptual framework. It is difficult to use it in discussion with others.

Nebraska ought not adopt the revised Model Rules because these rules better reflect appropriate professional norms. This is a matter for substantive debate elsewhere. Rather, the Nebraska Supreme Court ought to adopt the revised Model Rules in order to facilitate Nebraska lawyers' involvement in the national educational discussion. If the Nebraska Supreme Court insists on keeping its archaic version of the Model Code, Nebraskans will be left out of national ethics dialogue and education. At the least, they will be disadvantaged in these discussions because they are not adequately conversant with the common national vocabulary.

Of course, if Nebraska does adopt the revised Model Rules in order to provide a common vocabulary, it is important that identical expressions in the Nebraska Model Rules and in other states' versions of the Model Rules have the same meaning. If the same words are used in different ways, conversation will be confused and impeded rather than facilitated. I will discuss one example of a case in which the Nebraska Supreme Court adopted the Model Rules' common vocabulary but interpreted its language in an uncommon way. The court ventured on its own to adopt a "bright line" rule to resolve conflicts that arise when a lawyer or student law clerk leaves one firm to work on her own or with another firm. I have previously written about the application of

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this rule to student clerks, and I was involved in persuading the court to adopt Disciplinary Rule 5-109.(fn2)

Here, I will examine the "bright line" rule's...