ACTEC commentaries on the Model Rules of Professional Conduct - Adopted by the Board of Regents of the American College of Trust and Estate Counsel - October 1993

Real Property, Probate and Trust Journal, Winter 1994

John R. Price, Professor of Law University of Washington, Reporter

Bruce S. Ross, Chair, ACTEC Professional Standards Committee

III. INTRODUCTION

The Preamble, Scope and Terminology applicable to the Model Rules provide some helpful guidance regarding the content, meaning, and application of the Rules. The following excerpts are particularly relevant.

A. Excerpts from Preamble

As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications....As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others. As intermediary between clients, a lawyer seeks to reconcile their divergent interests as an advisor and, to a limited extent, as a spokesperson for each client. A lawyer acts as evaluator by examining a client's legal affairs and reporting about them to the client or to others.

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In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interest in remaining an upright person while earning a satisfactory living. The Rules of Professional Conduct prescribe terms for resolving such conflicts. Within the framework of these Rules, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided be the basic principles underlying the Rules.(12)

B. Excerpt from Scope

The Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of legal representation and of the law itself. Some of the Rules are imperatives, cast in the terms "shall" or "shall not." These define proper conduct for purposes of professional discipline. Others, generally cast in the term "may," are permissive and define areas under the Rules in which the lawyer has professional discretion. No disciplinary action should be taken when the lawyer chooses not to act or acts within the bounds of such discretion....Many of the Comments use the term "shod." Comments do not add obligations to the Rules but provide guidance for practicing in compliance with the Rules.

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Violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability.(13)

IV. JURISDICTIONS THAT HAVE ADOPTED THE MODEL RULES OF PROFESSIONAL CONDUCT

More than two-thirds of the states and the District of Columbia have adopted the Model Rules with some modifications. In addition, three states (New York, Oregon and Virginia) have amended their version of the Model Code to reflect certain Model Rules provisions. One state, California, did not base its code on the Model Code originally and refused to base a 1989 revision on the Model Rules.(14) The following jurisdictions have adopted amended forms of the Model Rules with the effective dates shown:(15)