The Challenge Of Writing Rules To Regulate Lawyer Conduct

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Morgan, Thomas
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2016-09
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INTRODUCTION|I am pleased to be included in a symposium devoted in part to the work of the American Bar Association ("ABA") Commission on Evaluation of Professional Standards. Its chair was the late Robert J. Kutak of Omaha. Bob Kutak had an extraordinary influence on my own professional life, but he died over thirty years ago. That means a significant portion of the active bar may no longer remember him, and that is a shame. |The Kutak Rock law firm, based in Omaha, was the first significant "national" law firm, meaning that it had offices in multiple cities. One of those cities was Atlanta, where I served as dean of the Emory University School of Law. Bob Kutak used to stop by to talk about the work of the Commission and his firm when he came to Atlanta. His death at a young age was a tremendous loss to all who knew him, and I believe that if he had survived, the entire legal profession might have developed much differently over the intervening years. |Professor Ariens has had the opportunity to see the Commission's work up close through Bob Kutak's papers, and as he has written so well, the Kutak Commission was ambitious and creative. Much of the ABA's early response to the Commission's work was negative, but the Commission persevered and the Model Rules of Professional Conduct ("Model Rules") now govern most of the American legal profession. |I will try not to repeat Professor Ariens' work about the Commission itself. What I want to do is focus on challenges inherent in drafting any rules to govern lawyer conduct and suggest why we seem to be endlessly in the process of revising our professional rules. I hope that in so doing I can provide some ways to think about the Model Rules we have and imagine what better Rules might look like...
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Creighton University School of Law
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