What an ethical code should look like

Legal Ethics Forum recently published a post regarding the objections of two California lawyers to that state bar’s adopting a revised set of Rules of Professional Responsibility.  Kurt Melchior and Jerome Sapiro, Jr., of The Sapiro Law Firm, raise a number of issues, but their chief objection appears to be that  the proposed rule revisions are too lengthy and complex.

They have a point.

I certainly don’t agree with everything Melchior and Sapiro say in their joint submission.  In fact, I disagree fundamentally with the portion of their submission objecting to a rule preventing the mass settlements without the consent of every plaintiff covered by a blanket settlement offer.  That, however, is an argument for another day.

I do agree in principle with their main objection: that the proposed rules take the American Bar Association Model Rules of Professional Responsibility, and add an excessive amount of particularization and commentary.

Reading Melchior and Sapiro’s joint submission to the California State Bar’s Commission on the Revision of the Rules of Professional Responsibility got me thinking about what a formal code of professional responsibility should look like.

It seems to me that at least three basic criteria should apply:

1. Codes of conduct should be general.  While I will always hold my profession to the highest professional standards, I don’t believe professional codes of ethics should be interpreted and applied in the same we interpret and apply statutes.  That approach has at least two undesirable side-effects:

1. They should be concise and short.   This is related to being general in nature. Keeping codes of professional conduct discourages approaching the code like a statute, and instead, promotes thinking about the professional ethics in a way that focuses on the client and the public interest.  It also leads to more careful thought about the reason why a particular course of action might not be appropriate.

1. They should be written in plain language.  The purpose for this is to maintain public accountability.  When a person outside the profession picks up a code of professional conduct written in legalese, the message he receives is that it is it isn’t written with his interests in mind.  Professional codes are meant to protect the public interest, and any member of the public should be able to easily access it.  Once they’ve accessed it, they should be able to understand it easily.

Professional codes must undergo revision from time to time, but there is no need for the rules to become overly complex and exhaustive.  We aren’t the only ones reading them.