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Unformatted text preview: Page 1 Legal Ethics in a Nutshell 1 Rotundas Legal Ethics in a Nutshell Third Edition 2007 Ronald D. Rotunda INTRODUCTION: THE PREAMBLE, SCOPE, AND RULE 1.0 1. A Historical Perspective A. The Hoffman Resolutions The present ABA Model Rules of Professional Conduct have a long lineage that goes back over a century and a half. In 1836, in an era when the legal profession was subject to virtually no regulation, David Hoffman, an attorney who founded the School of Law at the University of Maryland, published for his students fifty Resolutions In Regard to Professional Deportment. Hoffman's exhortations may sound antiquated, or at least quaint, to the modern ear. E.g., What is morally wrong cannot be professionally right, however it may be sanctioned by time or custom. Resolution 33. Some modern commentators have belittled his advice as Victorian moralizing. Yet, he marked the beginning. B. Sharswood's Lectures A generation later, in 1854, Professor (and Judge) George Sharswood published, A Compend[ium] of Lectures on the Aims and Duties of the Profession of Law . Sharswood agreed with many of Hoffman's specific recommendations, but there were important differences, probably more in degree than in kind. Sharswood was more interested than Hoffman in rules that lawyers could understand and the bar enforce. Sharswood's lectures greatly influenced the Alabama Bar Association, which published its Code of Ethics in 1887. Alabama, in turn, paved the way for the American Bar Association to adopt its own ethics rules. C. The ABA Canons of Professional Ethics Various other states followed Alabama's lead, but there was no model code of lawyers' ethics until August 27, 1908, when a nationwide voluntary bar association, the American Bar Association, approved 32 Canons of Professional Ethics based on the Alabama model. The ABA began with a very small, elite membership in 1878. From its inception through 1893, its annual meetings drew only about 75 to 100 people. In the twentieth century, ABA membership steadily grew and its goals expanded. Initially, the ABA did not call its ethics rules a model. In fact, the ABA had more ambitious goals. At first, it treated its Canons of Professional Ethics as private law governing those lawyers who chose to join that Association. In 1940 it announced: The Canons of this Association govern all its members, irrespective of the nature of their practice, and the application of the Canons is not affected by statutes or regulations governing certain activities of lawyers which may prescribe less stringent standards. The ABA's remedies were limited. It could expel a member from its association for noncompliance with its rules, but one did not need to be admitted into the ABA in order to practice law, just like one does not have to join a choir in order to sing....
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