The ABA, the Rules, and Professionalism: The Mechanics of Self-Defeat and a Call for a Return to the Ethical, Moral, and Practical Approach of the Canons

Abstract

In this Article I argue that there was once a single animating goal for American legal ethics - providing moral, ethical, and practical guidance on practicing law. Throughout the 20th Century lawyer regulators worked to bisect that goal, and we now have two quite distinct, and frequently conflicting goals. On the one hand, bar regulators pushed ceaselessly to narrow the regulations governing lawyer conduct to black-letter minimum, and eliminated the broadly moral from the Rules. On the other hand, bar regulators sought to raise lawyers' ethical and moral standards through professionalism and other non-mandatory efforts. These bisected goals clash in several notable ways. First, separating the mandatory from the hortatory creates cynicism about both projects. Second, theorists have long argued that criminal prohibitions are most effective when they overlap with commonly held morality, because people tend to obey those laws regardless of enforcement. As lawyer regulators have eliminated the broadly moral from the Rules of Professional Conduct they have greatly decreased the odds of compliance, since lawyers will not feel ethically bound to obey, and lawyer regulations are notoriously under-enforced. Lastly, black-letter rules trigger a particular lawyer heuristic I call "boundary seeking." Lawyers are trained to find the border between the legal and the illegal, and this heuristic replaces any broader ethical consideration. I suggest eliminating these inconsistencies by returning to the original, unitary goal of legal ethics, and redrafting a general statement of ethical, moral, and practical principles to govern the legal profession, i.e. we should return to the approach of the ABA's 1908 Canons of Professional Ethics.