[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

lawyer to professional discipline, with sanctions ranging from private or public reprimand
to fines, suspensions, and permanent disbarment from legal practice. 4 Disciplinary
proceedings are usually administrative in nature, require a high burden of proof (clear and
convincing evidence), and allow for an appeal to the highest state court.
The idea of lawyer professional rules began as an annual series of lectures on legal ethics
by retired Judge George Sharswood, at the University of Pennsylvania Law School in the
mid-nineteenth century. His essays influenced the development of the first ABArecommended
set of professional rules in 1908, the Canons of Professional Ethics
(“Canons”), which was then officially adopted by nearly every jurisdiction in this country.
The ABA Model Code of Professional Responsibility (“Model Code,” or “CPR”)
superseded the Canons in 1969. Once again, nearly every jurisdiction followed the ABA’s
recommendation, replacing the Canons with the Model Code.
In 1983, the ABA recommended that the Model Rules of Professional Conduct
(“Model Rules”) replace its Model Code. The Model Rules significantly expanded the
provisions of the Model Code and changed its structure to mirror other uniform codes:
black-letter rules followed by comments. To date, all but a few jurisdictions have adopted
their own version of the Model Rules, including amendments recommended in 2002 by
the ABA Ethics 2000 Commission.
When lawyers are unsure about the meaning or applicability of a rule provision, they
can ask a local, state, or national bar association for an ethics opinion or call an ethics
hotline for advice. These opinions are advisory but even courts that subsequently disagree
with them rarely discipline a lawyer for following such advice. 5
The substantive provisions of these various lawyer rules of professional conduct have
borrowed significantly from general legal and moral concepts found in other bodies of law.
For example, First Amendment principles shaped the law of lawyer advertising and
solicitation, the law of agency delineated a lawyer’s obligations to avoid conflicts of interest,
the evidentiary attorney-client privilege informed duties of confidentiality, contract law
dictated some of the law on lawyer fees, and competence duties were borrowed from tort
law.
General Law The common law that influenced the drafting of lawyer rules of professional
conduct has applied general legal concepts and rules to lawyer conduct in an evolving
common law process over the past two centuries. In civil cases, the common law has been
called on to address issues such as fiduciary duties, the formation of a client-lawyer
relationship, fee arrangements, malpractice liability for professional errors, and the
attorney-client privilege. In criminal cases, the constitutional rights of defendants have
shaped prosecutorial obligations of fairness, as well as the standards of competence for
defense counsel. Most of these cases sought civil, equitable, and criminal remedies apart
from professional discipline, such as civil liability, reversal of a criminal conviction,
disqualification, and fee forfeiture.
Today, cases that seek these judicial remedies often rely on lawyer rules of professional
conduct to assist in articulating common law principles and the appropriate standard of
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