Instinctively, if you know your way around the attorney ethics rules, I don’t think the question posed by the title of this post is a particularly hard question. But two incidents I’ve experienced within the last few weeks have caused me to question how well understood it is among the legal community that there are actually five such rules.
Before beginning properly, an aside is perhaps desirable to undercut pedantry out of the gate. No one can actually violate an ABA Model Rule as they don’t govern anyone on their own. They can only have sway if they are adopted into a specific jurisdiction as a relevant ethics rule. However, since I do not possess encyclopedic awareness of every single variation of the rules that have been adopted in all 51 U.S. jurisdictions, I’m keeping this post focused on the substantive concepts enshrined in the ABA Model Rule version of the ethics rules.
Let’s start with what I now feel like have to be said to be the “easy” three answers.
The first is the one that likely springs to mind first for everyone: Model Rule 6.5 regarding pro bono public service. It is an entirely aspirational rule and so no one could ever get disciplined for a “violation” of it.
The second is another easy one. Model Rule 8.5 which simply addresses conflict of law issues and determines which jurisdiction’s ethics rules would apply in a particular circumstance. Thus, since it imposes no requirement on a lawyer, it cannot itself be violated.
The third is also easy (I think). Model Rule 5.2. That rule only does two things: (1) it gives a limited defense to lawyers for what might otherwise be disciplinable conduct; and (2) makes clear that, absent that defense, a lawyer is responsible for their own conduct even if ordered by their boss to do it. You cannot violate Rule 5.2.
The fourth is not as easy to remember as the first three but only because it simply isn’t an easy rule to remember even exists. If you remember it exists, then recognizing its lack of teeth is pretty well understood. Model Rule 6.5 on working with nonprofit and court annexed limited legal services programs. All it does is identify the limitations on the application of other rules when the circumstances are met. A lawyer participating with such a group could still violate those other rules within their limited application but cannot actually violate Rule 6.5.
And that brings us to the fifth which essentially has the same structural set up as the fourth even though it isn’t quite written in the same straightforward fashion.
That’s right, it’s Model Rule 5.7: Responsibilities Regarding Law Related Services.
That rule only serves to provide a structure for when a lawyer can avoid the application of nearly all of the ethics rules to the provision of law-related services. Now it is written in a somewhat backwards sort of fashion — describing when all of the rules will apply to the provision of law-related services but, in the end, it still serves to just provide guidance (even if only indirectly) for how a lawyer can avoid that result.
An attorney whose conduct doesn’t meet the standards set out by RPC 5.7, doesn’t violate the rule and no one can ever be non-frivolously charged with a violation of RPC 5.7. One of the two incidents mentioned above that made me think not as many people understand RPC 5.7 as I thought was a disciplinary counsel attempting to charge someone with a violation of RPC 5.7 in Tennessee.
A person who doesn’t “comply” with the rule simply leaves themselves in a position where all of the normal rules apply to their delivery of law-related services just as with the delivery of legal services. A person who “complies” with RPC 5.7, however, can only be charged and held responsible from a disciplinary standpoint for the provision of law-related services if their conduct violates RPC 8.4 or if the person receiving the services is also their client in an attorney-client relationship, if the transaction does not comply with the requirements of RPC 1.8(a).
The second incident referenced above was a lively panel discussion that took place at the APRL annual meeting and that questioned what the purpose of Model Rule 5.7 even is. I continue to think it is a bit obvious that the purpose is primarily two-fold: (1) prevent the application of RPC 1.5 to the charging of fees for law-related services; and (2) prevent the application of RPC 1.6 as to confidentiality to information about law-related services.
A reworked, rewritten version of the rule might read as follows:
(a) When a lawyer personally provides law-related services in circumstances that are distinct from the lawyer’s provision of legal services to clients, then the lawyer’s provision of law-related services is not subject to any of the Rules of Professional Conduct except for RPC 8.4.
(b) When law-related services are provided in other circumstances by an entity controlled by the lawyer individually or with others, as long as the lawyer takes reasonable measures to assure that the recipient of the law-related services knows that they are not receiving legal services and the protections of the client-lawyer relationship do not exist, then the provision of law-related services in not subject to any of the Rules of Professional Conduct except for RPC 8.4.
(c) If a lawyer (or an entity controlled by the lawyer individually or with others) provides law-related services to someone who is also a client of the lawyer (or the lawyer’s firm) for legal services, then RPC 1.8(a) applies to the transaction.
(d) The term “law related services” denotes services that might reasonably be performed in conjunction with and in substance are related to the provision of legal services, and that are not prohibited as unauthorized practice of law when provided by a nonlawyer.
Perhaps in this reworked version the overall point and structure of the rule is clearer?
5 replies on “Can you name all the ABA Model Rules that can never be violated?”
Your writing sparked an appreciation, being someone who has never interacted with a lawyer; thank you. Ethics is an interesting area of scholarship. It is possibly remarkable that you have done this research, and it is good food for thought in any professional relationship.
Hey! What about RPC 1.0? It is, after all, a Rule, with its own set of Comments, but seems to only contain a bunch of definitions.
I mean you are technically correct which, of course, is the best kind of correct to be.
You stated, or implied, that the ABA Model Rules have been adopted in all 51 US jurisdictions. I assume your 51st is the District of Columbia. If so, you forget the US territories which are also US jurisdictions. Puerto Rico, for example, is one, and it has not adopted the Model Rules.
Yes. I did not get into or include Puerto Rico nor any other US territory such as Guam or the US Virgin Islands or American Samoa. In my defense, speaking about the ethics rules and US jurisdictions usually involves referencing the 51 as the states + D.C.