It will help us understand where we are if we look back at the history of legal ethics in the United States. In 1908 the ABA adopted the original Cannons of Professional Ethics. These were based on the Code of Ethics adopted by the Alabama Bar Association in 1887, which in turn had been adapted largely from the lectures of Judge George Sharswood, published in 1854 as Professional Ethics. These ABA Cannons of Professional Ethics were aspirational in character. They were what lawyers “should do” — not what they “must do”. Lawyers were told that they should “do good”. The Code of Ethics of the ABA was not generally enforced by way of legally enforced sanctions.
Stop. Notice that when lawyers first started talking about legal ethics they were talking about legal ethics in the dictionary, meaning number 1, mentioned above, to wit: the study of the general nature of morals and the specific moral choices to be made by a person. The aspirational effects of such a study were what drove what lawyers should do.
In 1969 the ABA produced the Model Code of Professional Responsibility. Suddenly lawyers had a code framed in the number 2 dictionary meaning of ethics, to with a professional code that had teeth in it. The Model Code was adopted subsequently by the vast majority of state and federal jurisdictions as enforceable rules by the courts supervising lawyers. Thus, for the first time we had ethics rules of what lawyers must do, for fear of losing their license to practice.
Notice that 30 years worth of graduating law school students have left law school not studying morals, but rather studying a code of rules that could not be violated on pain of sanction. Instead of studying Ethics 101 in the Arts college, they were studying “Model Code of Professional Responsibility 101 in the Law college. Because of demographics, the majority of lawyers practicing law today graduated in these last 30 years. Since 1969 we have had a succession of revisions of the Model Code of Professional Responsibility with more and more rules and standards of what a lawyer “must do”. This has been the almost exclusive way in which lawyers and courts have looked at ethics in the last half century. It is now difficult for lawyers steeped in the ABA Model Code to think first of “what is morally right?”— rather than “what is the rule the courts say I must follow?”
Rule 2.1 is a rule that you almost never find mentioned in formal legal ethics opinions by bar associations.
Society now we must turn to neo-ethics, to wit: The combination of ethics as morals and as standards. In today’s society lawyers and courts can no longer indulge in the luxury of keeping their private morals and the public’s morals separate from lawyers professional standards. This is not a new idea, but certainly the idea has been buried. Indeed, Model Rule 2.1 inspires us to aspire. It says:
“Rule 2.1 – Advisor. In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law, but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.”
Rule 2.1 is a rule that you almost never find mentioned in formal legal ethics opinions by bar associations. Indeed, the entire emphasis in the last half century has not been on “other considerations such as moral, economic, social and political factors”. Society is now telling us lawyers we had better “refer not only to law, but to other considerations such as moral, economic, social and political factors”. The Neoethics rules the courts enforce in this century will respond to those ” other considerations such as moral, economic, social and political factors”
We now must look at all of the people with ethical stakes in our law business. The people with ethical stakes in our law business are: client, opponents, government, employees, your partners, the courts, adverse counsel, and you. Until now lawyers and courts have concentrated only on your client and you as having ethical stakes in what should be done by you in your law business. All of those other stakeholders have been left out of consideration. We must recognize that society and the courts may grade these stakeholders to sometimes have interests that are greater than the interests of your client and you.
That is why in the neo-ethics of today we see a sudden change in the times in which the lawyer is supposed to alert the public or government about bad things that his client is doing. Twenty years ago it was unthinkable that lawyers should inform government about their clients, absent the most clear and convincing threat of death at the hands of the client. Enron and 9-11 have driven morals into legal ethics. The government demands that if lawyers are going to practice with their corporate clients, then the lawyers must start affirmatively bringing their clients to account under rules of public morality and decency. The new and changing rules, in federal rules and in many states, regulating when the attorney must alert the public, and disclose client confidences, is a response to that demand.
We lawyers must, and shall, recognize what is going on. If we recognize that there now is a combined legal/social ethical framework in which lawyers must work, we will recognize the new way in which we have to respond. We will recognize that we must start changing ethics rules and refinements to respond to this new legal-social framework of the 21st century.
Summary: Neoethics arises because there are: a new combined legal/social ethical framework in which lawyers work; a new way in which lawyers must perceive ethics as a subject of study; and new ethics rules and refinements that respond to this framework and perception.
* Neoethics Note: If you notice that this page is like one at edicta, it is because Bucklin is the author of this page and holds the copyright. edicta is authorized by Bucklin to take and use the content from various pages of this site. Neoethics is a trademark of Bliss McKnight Properties, Inc., used with permission. edicta is published as an Internet Zine by the Tort Trial & Insurance Practice Section of the American Bar Association