News of the demise of the California’s version of the Model Rules of Professional  Conduct after 14 years of effort caused many heads to explode among the ranks of our states’s ethics lawyers this week.   The implications and the issues raised by this saga are numerous but the biggest one really isn’t new at all and reaches far beyond California exceptionalism: what exactly to  do we want rules of profession conduct (writ small) to be?

Do we want them to lead, follow or get out of the way?

Lead?

Should rules of professional conduct be used to make change?  Consider ABA Model Rule 1.10, which provides for screening of disqualified lawyers.  This change, something that large law firms wanted to deal with the problem of tainted hires, was considered and rejected by the California Rules Revision Commission (RRC) largely because it would have gone where no California case had gone before (until Kirk v. First American Title; check out the amici; you can see where the interest in screening lies).  The RRC considered many proposed changes, so many that there is a 47 page detailing what they rejected and why.

Follow?

If it ain’t broke don’t fix it.   The California Supreme Court’s September 19 letter to the State Bar sets forth the charge of the second Rules Revision Commission (RRC 2):

The court strongly urges that the second Commission begin with the current [California Rules of Professional Conduct] and focus on revisions that are necessary to address developments in the law, and that eliminate, where possible, any unnecessary differences between California’s rules and those used by a preponderance of the states. The second Commission should also be guided in its task by the principle that the … historical purpose is to regulate the professional conduct of members of the bar, and that as such, the proposed rules should remain a set of minimum disciplinary standards. While the second Commission may be guided by and refer to the American Bar Association’s Model Rules of Professional Conduct when appropriate, it should avoid incorporating the purely aspirational or ethical considerations that are present in the Model Rules and Comments.

(emphasis added).  “Necessary”and “possible” suggest a narrow window for policy changes here.

Get Out of the Way?

Someone not long ago suggested that we simply do away with advertising rules.   Advertising rules,  rules prohibiting non-attorney ownership, rules prohibiting multi-jurisdictional and other “ethical” rules that exist in both the California and the ABA Model rules (as well as in court rules and statutes)  operate as restraints on trade that drive up costs.  They don’t protect clients but lawyers.   So the argument goes.

Should  “disruptive” change be embraced  to facilitate access to justice?  This was raised by the recent “Futures” report from the Canadian Bar Association, a report which seems to have influenced the ABA to create its own commission on access to justice.  Incoming ABA President Hubbard:

The commission’s primary task will be to identify the most innovative practices being used around the country to deliver legal services, as well as more theoretical ideas, and to develop a blueprint for fostering innovations in the legal system that will improve access to justice. The commission will be composed of up to 30 members representing a variety of perspectives, both from within and outside the legal profession.

Hubbard said he wants to “bring in people thinking outside the box, from across the country at the grassroots level, people who are unconstrained by preconceptions of how the law ought to be practiced.” And, he said, the ABA is uniquely positioned “through its convening power to bring representatives of these interests together to see if there is a way to harness innovative technology and create more approaches to the delivery of legal services in a way that is consistent with the core values of our profession and in a way that protects the public.”

“If we don’t change, the profession as we know it will go away,” he said. “We have to deliver legal services with more accessibility and less complexity using the tools available to us or we put ourselves at risk of becoming obsolete.”

How far outside the box?  The full Monty, as Australia and Great Britain have, perhaps soon to be joined by the Great White North? (Defined as non-lawyer ownership of law firms, the Holy Grail of disruption, far more shocking to legal traditionalists than mere nudity.)  Or something not so shocking?  It’s hard to see how some changes to the more protectionists aspects of the rules of professional conduct (plural) can be avoided if we are really serious about avoiding the obsolescence that President Hubbard fears.

Where To Now?

Option #3, Get Out of Way, is the mirror image of Option #1, Lead.  The California Supreme Court was obviously troubled by having to accept (or even evaluate) all of the policy changes inherent in the RRC’s Proposed Revised Rules.  But opting for the status quo is a policy choice, too, and the one made by the California Supreme Court reflected in the September 19 letter doesn’t begin to address all policy choices that are going to have to be made to deal with the implications of the economic, technological and social changes occurring in a profession that, like it or not, is still woven into the fabric of the justice system (Cal. Const. Art. VI, sec. 9.)  Will that field be completely ceded to the Legislature?