Are evidence-related ethics provisions "law"?

Fordham Law Review

Volumn 76, Issue 3, 2007, Pages 1315-1336

  Zacharias, Fred C ^a  

^a UNIVERSITY OF SAN DIEGO   (United States)

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EID: 39349095409     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (168)

1. Restatement (Third) of the Law Governing Lawyers (2000).
2. The Restatement purports to distinguish between principles of legal ethics, which it denies considering, and rules that are enforced through the disciplinary process, which it deems part of the law governing lawyers. See id. at xxi (discussing the relationship between the legal ethics codes as "statutory law" and "decisional law" regulating lawyers);
3. cf. Charles W. Wolfram, Legal Ethics and the Restatement Process - the Sometimes-Uncomfortable Fit, 46 Okla. L. Rev. 13 (1993) (discussing the relationship between legal ethics codes' attempts to impose stylized morality and the law being addressed in the Restatement).
4. A separate and important threshold question is, what is law? Although this essay alludes to that issue, its focus is on the narrower topic of the interrelationship between ethics provisions and the "law" (whatever that may be) that judges implement in court. See infra text accompanying notes 96-98.
5. See infra Part I.
6. See, e.g., Geoffrey C. Hazard, Jr., An Historical Perspective on the Attorney-Client Privilege, 66 Cal. L. Rev. 1061, 1069-71 (1978) (discussing the distinct history of the privilege);
7. Gilda M. Tuoni, Society Versus the Lawyers: The Strange Hierarchy of Protections of the "New" Client Confidentiality, 8 St. John's J. Legal Comment. 439, 452-54 (1993) (comparing privilege to confidentiality).
8. See, e.g., Susan P. Koniak, The Law Between the Bar and the State, 70 N.C. L. Rev. 1389, 1427-47 (1992) (identifying the separate "nomos" of the bar and the centrality of confidentiality to the bar's separate vision);
9. Harry I. Subin, The Lawyer as Superego: Disclosure of Client Confidences to Prevent Harm, 70 Iowa L. Rev. 1091, 1159 (1985) (analyzing "[t]he coexistence of two disparate sets of confidentiality");
10. Fred C. Zacharias, Harmonizing Privilege and Confidentiality, 41 S. Tex. L. Rev. 69, 72 (1999) (noting the differences between privilege and confidentiality as well as the traditional view that they reflect different visions).
11. This essay limits its analysis to evidence rules, rather than addressing all legal standards that the codes may influence. For a broader discussion of the relationship between the codes and judicial regulation of lawyers, see Fred C. Zacharias & Bruce A. Green, Rationalizing Judicial Regulation of Lawyers (2007) (unpublished manuscript, on file with the Fordham Law Review).
12. See, e.g., IBM Corp. v. Levin, 579 F.2d 271, 279 (3d Cir. 1978) (noting that it normally would be error for a court not to disqualify a practitioner who had violated the established rules and standards of professional conduct);
13. United States v. Bullock, 642 F. Supp. 982, 984 n.4 (N.D. Ill. 1986) ("It is common lore that the Code, though it literally prescribes only the bases for lawyer discipline, is regularly used by courts in this Circuit to establish the criteria for lawyer disqualification as well.");
14. State Farm Mut. Auto. Ins. Co. v. Fed. Ins. Co., 86 Cal. Rptr. 2d 20, 25 (Ct. App. 1999) (upholding disqualification and stating that a violation of a conflict of interest rule normally is grounds for automatic disqualification);
15. McCourt Co. v. FPC Props., Inc., 434 N.E.2d 1234,1237-38 (Mass. 1982) (requiring disqualification and citing as support the Massachusetts and American Bar Association [ABA] Rules of Professional Conduct governing conflicts of interest).
16. See, e.g., Smith v. Haynsworth, Marion, McKay & Geurard, 472 S.E.2d 612, 614 (S.C. 1996) ("We concur with the majority of jurisdictions and hold that, in appropriate cases, the RPC may be relevant and admissible in assessing the legal duty of an attorney in a malpractice action.");
17. cf. United States v. Cavin, 39 F.3d 1299, 1309 (5th Cir. 1994) (allowing a lawyer to rely upon legal ethics constraints to establish a lack of criminal intent);
18. Note, The Evidentiary Use of the Ethics Codes in Legal Malpractice: Erasing a Double Standard, 109 Harv. L. Rev. 1102, 1104 (1996) (arguing that legal ethics codes should be deemed relevant to the malpractice standard of care).
19. See, e.g., United States v. Lopez, 4 F.3d 1455, 1465 (9th Cir. 1993) (Fletcher, J., concurring) (suggesting that a lawyer may not withdraw without complying with the governing rule of professional conduct);
20. Ashbrook v. Ashbrook, 366 N.E.2d 667, 671-72 (Ind. Ct. App. 1977) (citing satisfaction of the ABA Code of Professional Responsibility as good cause to allow withdrawal);
21. Jones v. State, 548 S.W.2d 329, 333-34 (Tenn. Crim. App. 1976) (stating that the lower court erred in allowing an attorney to withdraw due to his workload because the state's code of professional conduct did not specify that as a grounds for withdrawal, but finding harmless error).
22. Courts, for example, sometimes look to the codes in determining whether to sanction a lawyer for contacting a represented party, award or refuse to award a lawyer legal fees, or sanction a lawyer for misconduct in representing his client too zealously.
23. See, e.g., Dawson v. State, 734 P.2d 221, 223 (Nev. 1987) (affirming but remanding for resentencing because of a criminal prosecutor's appeal to racial prejudice);
24. LeBlanc v. Am. Honda Motor Co., 688 A.2d 556, 560-61 (N.H. 1997) (ordering a new trial, in part, because an attorney's summation appealed to the racial and national prejudice of the jury);
25. see also Joseph A. Colquitt, Evidence and Ethics: Litigating in the Shadows of the Rules, 76 Fordham L. Rev. 1641 (2007) (discussing two scenarios in which an attorney attempts to exploit the jury's prejudices).
26. See, e.g., State v. Jones, 49 P.3d 273, 282 (Ariz. 2002) (stating that a number of autopsy photographs should have been excluded from evidence because they were cumulative or were "offered in an attempt to incense the jurors");
27. Miss. State Highway Comm'n v. Hall, 174 So.2d 488, 493 (Miss. 1965) (reversing a civil verdict, in part, because an attorney's argument to the jurors as taxpayers "could not have been uttered except for the purpose of inflaming the jury");
28. Ritchie v. State, 632 P.2d 1244, 1246 (Okla. Crim. App. 1981) (reversing a conviction because enlarged photographs of the victim prior to the murder that were displayed throughout the trial were meant to arouse the passions of the jury and should have been excluded).
29. See, e.g., DeJesus v. Flick, 7 P.3d 459, 464 (Nev. 2000) (overturning a civil verdict based on an attorney's summation expressing his personal opinion of the virtue of the plaintiff's case);
30. Binegar v. Day, 120 N.W.2d 521, 526-27 (S.D. 1963) (reversing because counsel repeatedly made statements in summation regarding facts not in evidence based on his personal knowledge and experience);
31. Lorenz v. Wolff, 173 N.W.2d 129, 138-39 (Wis. 1970) (ordering a new trial because defense counsel interjected his personal opinion and knowledge into the questioning of a witness and closing arguments);
32. cf. United States v. Lamerson, 457 F.2d 371, 372 (5th Cir. 1972) (reversing a criminal conviction on the grounds that "the prosecutor said: 'I know it is the truth,' the inference being that he had outside knowledge");
33. State v. Banks, No. W2005-02213-CCA-R3-DD, 2007 WL 1966039, at *40 (Tenn. Crim. App. July 6, 2007) (describing two of five "generally recognized areas of prosecutorial misconduct in closing argument" as being when the prosecutor "expresses his or her personal opinion on the evidence or the defendant's guilt [and when the prosecutor] uses arguments calculated to inflame the passions or prejudices of the jury").
34. See, e.g., Spears v. Mullin, 343 F.3d 1215, 1227-28 (10th Cir. 2003) (overturning a conviction on due process grounds, in part due to the introduction of bloody photos during capital sentencing);
35. Romine v. Head, 253 F.3d 1349, 1370-71 (11th Cir. 2001) (overturning the imposition of the death penalty because of the prosecutors' inflammatory remarks, including biblical references to murder and punishment);
36. McFarland v. Smith, 611 F.2d 414, 419 (2d Cir. 1979) (reversing a conviction on due process grounds, because of a summation which included an "illogical" invitation to deliberate based on racial considerations);
37. see also Albert W. Alschuler, Courtroom Misconduct by Prosecutors and Trial Judges, 50 Tex. L. Rev. 629, 642 (1972) (cataloging due process decisions concerning inflammatory prosecutorial arguments);
38. Fred C. Zacharias, Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors Do Justice?, 44 Vand. L. Rev. 45, 95-102 (1991) (discussing improper argumentation by criminal prosecutors).
39. Often, overzealous argument will constitute harmless error. See, e.g., Darden v. Wainwright, 477 U.S. 168, 179-81 (1986) (noting that a prosecutor's closing argument "deserve[d] . . . condemnation," but declining to reverse a conviction because the argument did not "infect[] the trial" (citing Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)));
40. State v. Smith, 599 N.W.2d 344, 355 (S.D. 1999) (holding that a prosecutor's inflammatory comments in summation "border[ed] on the outrageous," but ultimately were not sufficiently prejudicial to warrant reversal). Likewise, the mere fact that a lawyer expresses his own opinion about the evidence does not mean that the jury will believe him.
41. See, e.g., United States v. Young, 470 U.S. 1, 8-9, 16 (1985) (noting that both prosecutors and defense counsel "must refrain from interjecting personal beliefs into the presentation of his case" but concluding that prosecutor's remarks did not "undermine the fundamental fairness of the trial").
42. Model Rules of Prof'l Conduct R. 3.4(e) (2002).
43. See Commonwealth v. Smith, 385 A.2d 1320, 1323 (Pa. 1978) (finding ineffective assistance of counsel in the failure to raise an appellate claim of misconduct stemming from the prosecutor's statements of personal opinion in summation, and noting that "[a] prosecutor's expression of his personal belief as to a defendant's guilt clearly violates professional standards of conduct").
44. The first formal legal ethics code was adopted in Alabama in 1887. See Carol Rice Andrews, The Lasting Legacy of the 1887 Code of Ethics of the Alabama State Bar Association, in Carol Rice Andrews et al., Gilded Age Legal Ethics: Essays on Thomas Goode Jones' 1887 Code and the Regulation of the Profession 7, 7 (2003) (noting that the Alabama code "was the first code of its kind").
45. The ABA adopted its first code of professional responsibility, the Canons of Ethics, in 1908 and many states adopted the Canons. However, the Canons provided mainly idealistic and generalized provisions. See James M. Altman, Considering the A.B.A.'s 1908 Canons of Ethics, 71 Fordham L. Rev. 2395, 2401 (2003) (analyzing the Canons). It was not until the 1969 Code of Professional Responsibility that the ABA for the first time promulgated specific and enforceable rules.
46. See Geoffrey C. Hazard, Jr., The Future of Legal Ethics, 100 Yale L.J. 1239, 1249-60 (1991) (discussing the legalization of the professional codes). Before and after the Canons, however, lawyers governed themselves according to professional norms and understandings about their role and the propriety of particular types of behavior.
47. Id. at 1249 ("The content of the legal profession's narrative and core ethical rules, as pronounced in the 1908 Canons, has been preserved largely unchanged in today's Rules of Professional Conduct. . . . What were fraternal norms issuing from an autonomous professional society have now been transformed into a body of judicially enforced regulations.").
48. See supra text accompanying notes 5-6.
49. See Fred C. Zacharias & Bruce A. Green, Reconceptualizing Advocacy Ethics, 74 Geo. Wash. L. Rev. 1, 57 (2005) (discussing the view that the bar's "belief in the overriding importance of the attorney-client relationship is inconsistent with the judiciary's more practical determination to resolve cases in a fair way, based on the fullest possible evidentiary record").
50. See Zacharias, supra note 6, at 73-75 (describing the judicial vision).
51. See Koniak, supra note 6, at 1412 ("[F]ederal and state courts often state that the only instances in which they are bound to treat the [professional] rules as binding precepts are in disciplinary proceedings against lawyers.").
52. Zacharias, supra note 6, at 73-74 (comparing the competing visions of attorney-client secrecy protections).
53. 858 F.2d 834 (2d Cir. 1988).
54. Id. at 837-38 ("This circuit conclusively established the applicability of DR 7-104(A)(1) to criminal prosecutions in United States v. Jamil, 707 F.2d 638 [(1983)].").
55. Id. at 840 ("[T]he use of informants by government prosecutors in a preindictment, non-custodial situation, absent the type of [egregious] misconduct that occurred in this case, will generally fall within the 'authorized by law' exception . . . . ");
56. see Andrew L. Kaufman, Who Should Make the Rules Governing Conduct of Lawyers in Federal Matters, 75 Tul. L. Rev. 149, 152 (2000) (noting that the U.S. Department of Justice used the court's holding in Hammad and the "authorized by law" provision to assert broadly that federal prosecutors are exempt from both state and federal anticontact rules);
57. Robert Sneed, The "No-Contact" Rule and Prosecutorial Misconduct, 47 S.C. L. Rev. 130, 134 (1995) (arguing that too broad an interpretation of "authorized by law" would exempt all federal prosecutorial law enforcement activities because they are technically authorized by federal law).
58. In Niesig v. Team I, 558 N.E.2d 1030, 1032 (N.Y. 1990), for example, the New York Court of Appeals applied the rule against communicating with represented parties to communications with corporate employees, but also recognized exceptions for "former employees" and employees who are independently represented, even though such communications arguably interfere with the represented party's (i.e., the corporation's) relationship with its attorney as much as communications with current employees and employees represented only by corporate counsel.
59. Cf. United States v. Hous. Auth., 179 F.R.D. 69, 72 (D. Conn. 1997) (suggesting a judicial exception to the local professional rule permitting communications with former employees);
60. Morrison v. Brandeis Univ., 125 F.R.D. 14, 18 (D. Mass. 1989) (authorizing communications that seemed to be forbidden by the prevailing professional rule).
61. E.g., Model Rules of Prof'l Conduct R. 3.1 (2002).
62. E.g., Fed. R. Civ. P. 11(b).
63. See Zacharias & Green, supra note 22, at 46 (discussing the client-oriented gloss that lawyers place on the codes).
64. See, e.g., Am. Express v. Accu-Weather, Inc., No. 91 Civ. 6485, 1996 U.S. Dist. LEXIS 8840, at *3-7 (S.D.N.Y. June 25, 1996) (criticizing a lawyer for rejecting opposing counsel's request that he return an unopened inadvertently disclosed package);
65. Aerojet-Gen. Corp. v. Transport Indem. Ins., 22 Cal. Rptr. 2d 862, 867-68 (Ct. App. 1993) ("Once [the lawyer] acquired the information in a manner that was not due to his own fault or wrongdoing, he cannot purge it from his mind. Indeed, his professional obligation demands that he utilize his knowledge about the case on his client's behalf.");
66. Monroe H. Freedman, Erroneous Disclosure of Damaging Information: A Response to Professor Andrew Perlman, 14 Geo. Mason L. Rev. 179, 181-82 (2006) ("[W]eighty reasons strongly support the use of an erroneous disclosure for the benefit of one's client . . . . [I]f the client's decision is to use the information to its greatest effect, the lawyer should not say anything about the information to the other side until it is tactically desirable to do so.");
67. cf. Andrew M. Perlman, Untangling Ethics Theory from Attorney Conduct Rules: The Case of Inadvertent Disclosures, 13 Geo. Mason L. Rev. 767, 770 (2005) (arguing for a change in legal ethics codes to require lawyers sometimes to return inadvertently disclosed documents).
68. See Trina Jones, Inadvertent Disclosure of Privileged Information and the Law of Mistake: Using Substantive Legal Principles to Guide Ethical Decision Making, 48 Emory L.J. 1255, 1272 (1999) (stating that courts "focus almost exclusively on the legal question of whether inadvertent disclosure waives the attorney-client privilege").
69. Some courts take the position that an inadvertent disclosure always constitutes a waiver of privilege. See, e.g., Texaco Puerto Rico, Inc. v. Dep't of Consumer Affairs, 60 F.3d 867, 883-84 (1st Cir. 1995);
70. Chubb Integrated Sys. Ltd. v. Nat'l Bank of Wash., 103 F.R.D. 52, 66-68 (D.D.C. 1984);
71. State v. Szemple, 640 A.2d 817, 823-24 (N.J. 1994).
72. Others suggest that if the disclosure truly is inadvertent, it never rises to the level of a waiver. E.g., Redland Soccer Club, Inc. v. Dep't of the Army, 55 F.3d 827, 856 (3d Cir. 1995);
73. Van Hull v. Marriott Courtyard, 63 F. Supp. 2d 840, 840 (N.D. Ohio 1999);
74. Berg Elecs., Inc., v. Molex, Inc., 875 F. Supp. 261, 263 (D. Del. 1995);
75. Corey v. Norman, Hanson & DeTroy, 742 A.2d 933, 941 (Me. 1999). Most modern courts apply some form of multifactor balancing test. E.g., In re Grand Jury, 138 F.3d 978, 981 (3d Cir. 1998);
76. Alldread v. City of Grenada, 988 F.2d 1425, 1434-35 (5th Cir. 1993);
77. State ex rel. Allstate Ins. Co. v. Gaughan, 508 S.E.2d 75, 94-96 (W. Va. 1998);
78. see Restatement (Third) of the Law Governing Lawyers § 79 cmt. h (2000) (discussing the modern approach). The issue of when inadvertent disclosure by the lawyer constitutes, or should constitute, an evidentiary waiver of a legal privilege is discussed in Perlman, supra note 33;
79. Audrey Rogers, New Insights on Waiver and the Inadvertent Disclosure of Privileged Materials: Attorney Responsibility as the Governing Precept, 47 Fla. L. Rev. 159 (1995);
80. Joshua K. Simko, Inadvertent Disclosure, the Attorney-Client Privilege, and Legal Ethics: An Examination and Suggestion for Alaska, 19 Alaska L. Rev. 461 (2002);
81. Note, Inadvertent Disclosure of Documents Subject to the Attorney-Client Privilege, 82 Mich. L. Rev. 598 (1983).
82. See Model Rules of Prof'l Conduct R. 4.4(b) (2002) ("A lawyer who receives a document . . . and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.").
83. The decision primarily reflects implementation of the court's supervisory authority over lawyers. See Fred C. Zacharias & Bruce A. Green, Federal Court Authority to Regulate Lawyers: A Practice in Search of a Theory, 56 Vand. L. Rev. 1303, 1311-13 (2003) (describing the supervisory authority in the context of the federal courts).
84. See, e.g., Weigel v. Farmers Ins. Co., 158 S.W.3d 147, 151 (Ark. 2004) ("The Model Rules of Professional Conduct are applicable in disqualification proceedings. However, a violation of the Model Rules does not automatically compel disqualification; rather, such matters involve the exercise of judicial discretion.");
85. Klupt v. Krongard, 728 A.2d 727, 739 (Md. Ct. Spec. App. 1999) ("[E]ven after the court's finding of an ethical violation, it remains within the discretion of the court whether to impose the sanction of disqualification.").
86. See, e.g., Thompson v. Goetz, 455 N.W.2d 580, 588 (N.D. 1990) (upholding a decision to allow plaintiffs attorney to testify because it would have been a substantial hardship on the client to find other counsel at that late date); Orangeburg Sausage Co. v. Cincinnati Ins. Co., 450 S.E.2d 66, 75 (S.C. Ct. App. 1994) (upholding a decision to allow defendant's attorney to remain as counsel and testify because he was the only available witness to rebut other testimony);
87. cf. Giraldi ex rel. Giraldi v. Cmty. Consol. Sch. Dist. No. 62, 665 N.E.2d 332, 337 (Ill. App. Ct. 1996) ("If an attorney has been handling a case for a long period of time and an unanticipated development or surprise makes the attorney's testimony necessary, it is not improper for the trial court to allow counsel to testify.").
88. See, e.g., Zurich Ins. Co. v. Knotts, 52 S.W.3d 555, 558 (Ky. 2001) (noting first that the professional lawyer-as-witness rule is "an ethical rule without an evidentiary counterpart [and that] [c]ourts routinely decide evidentiary questions and usually leave ethical matters to the bar," and then concluding that the adversary in the case could not disqualify a lawyer who had already filed an affidavit or call him to testify so long as his information might be otherwise available);
89. DiMartino v. Eighth Judicial Dist. Court ex rel. County of Clark, 66 P.3d 945, 946-47 (Nev. 2003) (overturning disqualification of an attorney the opposing side sought as a necessary witness because the trial court did not consider the availability of other sources of evidence that would have been equivalent to the attorney's testimony);
90. Harter v. Plains Ins. Co., 579 N.W.2d 625, 632 (S.D. 1998) (upholding a trial court's refusal to disqualify the attorney as a necessary witness where documentary evidence could have established the same facts sought to be established through the testimony).
91. E.g., Model Rules of Prof'l Conduct R. 3.3(a)(3) (forbidding a lawyer to "offer evidence that the lawyer knows to be false"), R. 3.4(b) (forbidding a lawyer to "falsify evidence, counsel or assist a witness to testify falsely").
92. This may be because the constraints of judicial efficiency in litigation prevent enforcement. See generally Zacharias & Green, supra note 7 (discussing the ways in which considerations of judicial administration make courts hesitate to enforce the professional codes in the trial context).
93. See, e.g., Model Rules of Prof'l Conduct R. 1.2(a) (assigning clients control over the objectives of representation and lawyers at least initial control over the means).
94. See Koniak, supra note 6, at 1450 (describing legal ethics as being based on the legal profession's perception of a "world in which the bar is independent from government control [and] preceded, helped bring about[,] and is necessary to maintaining the nation's material and normative existence").
95. Of course, the professional codes may be law in a different sense. Courts can enforce them against lawyers in disciplinary proceedings regardless of the codes' force in other contexts. The codes, therefore legally bind lawyers to the extent the lawyers wish to avoid sanctions. Courts also often allow juries to consider the codes in determining malpractice issues. See supra text accompanying note 9. In this context, the codes have evidentiary value, which might be deemed to be "legal" in one sense of the term.
96. See generally Zacharias & Green, supra note 7 (discussing conceptualizations that can reconcile the professional codes and judicial regulation of lawyers at the trial level).
97. Indeed, some ethics provisions are routinely underenforced or not enforced at all. See Fred C. Zacharias, What Lawyers Do When Nobody's Watching: Legal Advertising as a Case Study of the Impact of Underenforced Professional Rules, 87 Iowa L. Rev. 971, 997-1001 (2002) (discussing a series of rules that are underenforced).
98. See generally Zacharias & Green, supra note 7 (discussing the possibility that code-drafting courts expect their positions to be fleshed out subsequently).
99. See, e.g., Model Rules of Prof'l Conduct R. 1.6(b) (2002) (delineating exceptions to confidentiality).
100. The newly adopted Model Rules, for example, significantly expand the exceptions to confidentiality found in the previous version. Compare Model Rules of Prof'l Conduct R. 1.6(b)(1)-4) (2002), with Model Rules of Prof'l Conduct R. 1.6(b)(1)-(2) (1983). Even California, which previously purported to insist on absolute confidentiality, recently adopted an exception for future crimes. Cal. Rules of Prof'l Conduct R. 3-100 (2007). California may recognize other exceptions implicitly. See San Diego County Bar Ass'n Legal Ethics Comm., Formal Op. 2007-02 (2007) (noting numerous implicit exceptions to confidentiality even in California, which traditionally has implemented rules that are on their face nearly absolute).
101. See, e.g., San Diego County Bar Ass'n Legal Ethics Comm., Formal Op. 1990-1 (1990), http://www.sdcba.org/ethics/ethicsopinion90-1.html (holding, before recent amendment to the California confidentiality rule, that a lawyer may not reveal a client's threat to kill a codefendant).
102. Cf. San Diego County Bar Ass'n Legal Ethics Comm., Formal Op. 2007-02 (2007) (attempting to reconcile California's judicial retaliatory discharge decisions with confidentiality rules that forbid lawyers to disclose any information relating to, or gained in the course of, the representation).
103. See, e.g., United States v. Balter, 91 F.3d 427, 436 (3d Cir. 1996) ("[W]ith the exception of the Second Circuit, every court of appeals that has considered a similar case has held . . . that [no-contact] rules such as New Jersey Rule 4.2 do not apply to pre-indictment criminal investigations by government attorneys.");
104. United States v. Ryans, 903 F.2d 731, 739 (10th Cir. 1990) ("DR 7-104(A)(1) was not intended to preclude undercover investigations . . . merely because [the suspects] have retained counsel.");
105. Jennifer Blair, Comment, The Regulation of Federal Prosecutorial Misconduct by State Bar Associations: 28 U.S.C. Sec. 530B and the Reality of Inaction, 49 UCLA L. Rev. 625, 638-39 (2001) ("[H]ave state bar associations actually taken up the enforcement of state professional rules against unethical federal prosecutors? An exploration of the punishment rendered by ten state bar associations since the April 1999 effective date of [the McDade Amendment shows that] . . . [o]f 1767 lawyers seriously disciplined by the examined state bar associations from April 1999 to December 2000, only one was a federal prosecutor.");
106. see also William H. Edmonson, A "New " No-Contact Rule: Proposing an Addition to the No-Contact Rule to Address Questioning of Suspects After Unreasonable Charging Delays, 80 N.Y.U. L. Rev. 1773, 1781 (2005) ("Notwithstanding Congress's efforts through the McDade Amendment to prevent one particular narrow interpretation of the no-contact rule, most courts have tended to interpret the rule narrowly in the criminal context.");
107. Kathryn Keneally & Kenneth Breen, White Collar Crime, Champion, Apr. 2007, at 60, 60 ("In People v. Kabir, [822 N.Y.S.2d 864 (Sup. Ct. 2006)], the prosecutor discouraged the witness from contacting counsel and proceeded with an interview in the absence of counsel, and the court saw nothing wrong with this conduct.");
108. cf. United States v. Ferrara, 54 F.3d 825 (D.C. Cir. 1995) (involving an attempt to enjoin disciplinary proceedings instituted in New Mexico against a federal prosecutor employed in the District of Columbia).
109. See, e.g., supra text accompanying notes 26-28.
110. A few courts seem to have been willing to implement the rule. See, e.g., In re Doe, 801 F. Supp. 478, 493 (D.N.M. 1992) (allowing New Mexico disciplinary committee to proceed with charges against a federal prosecutor);
111. cf. United States v. Lopez, 4 F.3d 1455, 1464 (9th Cir. 1993) (finding that a prosecutor violated the state no-contact rule but also that the resulting dismissal of an indictment was an abuse of discretion).
112. See supra note 33 and accompanying text.
113. See Sampson Fire Sales, Inc. v. Oaks, 201 F.R.D. 351, 359-62 (M.D. Pa. 2001) (discussing cases on both sides and recognizing a "continued lack of clarity" by courts and the ABA);
114. In re Polypropylene Carpet Antitrust Litig., 181 F.R.D. 680, 697-99 (N.D. Ga. 1998) (distinguishing the issue of whether privilege was waived from the issue of whether an ethical duty to return the documents arose);
115. cf. Gloria A. Kristopek, To Peek or Not to Peek: Inadvertent or Unsolicited Disclosure of Documents to Opposing Counsel, 33 Val. U. L. Rev. 643, 644 (1999) ("With the arrival of new technology such as fax machines and increasingly complex litigation, inadvertent and unsolicited disclosures of confidential or privileged documents present emerging legal issues that bar associations and courts struggle to address.").
116. See, e.g., ABA Comm. on Ethics and Prof'l Responsibility, Formal Op. 92-368 (1992) (stating that recipients of an inadvertently disclosed fax should notify the sender and abide by his instructions), withdrawn in part, ABA Comm. on Ethics and Prof'l Responsibility, Formal Op. 05-437 (harmonizing Op. 92-368 with new Model Rule 4.4 by no longer requiring a receiving lawyer to abide by the sender's instruction);
117. Pa. Bar Ass'n Comm. on Legal Ethics and Prof'l Responsibility, Informal Op. 99-150 (1999) (imposing a broad duty to honor the adversary's right to the return of the documents, which was subsequently modified by the adoption of a new professional rule);
118. cf. D.C. Bar Legal Ethics Comm., Op. 256 (1995), http://www.dcbar.org/for_lawyers/ethics/legal_ethics/opinions/opinion256.cfm (stating that when a "receiving lawyer in good faith reviews the documents before the inadvertence of the disclosure is brought to that lawyer's attention, the receiving lawyer engages in no ethical violation by retaining and using those documents" but that "when the receiving lawyer knows of the inadvertence of the disclosure before the documents are examined, . . . the receiving lawyer [should] return the documents to the sending lawyer").
119. Model Rules of Prof'l Conduct R. 4.4(b) (2002) (requiring lawyers to "promptly notify" senders of inadvertently disclosed documents).
120. See Bruce A. Green & Fred C. Zacharias, Permissive Rules of Professional Conduct, 91 Minn. L. Rev. 265, 297-98 (2006) (noting, with respect to permissive ethics rules, that "[c]ode drafters sometimes adopt rules that accord lawyers discretion because they . . . hope that other law makers will agree with, or accede to, the drafters' normative judgment. In other instances, the drafters anticipate . . . that external lawmakers may reach different conclusions about the appropriate rule").
121. See, e.g., William H. Simon, The Practice of Justice 7 (1998) (describing 'the prevailing approach to lawyers' ethics . . . [as] this: the lawyer must - or at least may - pursue any goal of the client through any arguably legal course of action and assert any nonfrivolous legal claim").
122. As I have discussed elsewhere, the codes reflect rules that govern lawyers in conjunction with external law, including criminal law, agency law, and contract law. A professional code should be drafted with a view to how it meshes with external constraints. See Fred C. Zacharias, Specificity in Professional Responsibility Codes: Theory, Practice, and the Paradigm of Prosecutorial Ethics, 69 Notre Dame L. Rev. 223, 251-52 (1993) [hereinafter Zacharias, Specificity] (discussing code drafting). Likewise, the professional regulators should welcome outside enforcement of external constraints against lawyers, because that frees the bar and disciplinary agencies to do the work for which they are particularly well suited.
123. See Fred C. Zacharias, The Humanization of Lawyers, 2002 Prof'l Law. 9, 28-31 (2002) (discussing deference to external regulators).
124. See Zacharias & Green, supra note 22, at 60-64 (discussing judicial regulation of lawyers).
125. These constituencies may include clients, third parties, courts, society, and themselves.
126. See generally Zacharias & Green, supra note 7 (discussing the different considerations that various judicial regulators must address).
127. See, e.g., Green & Zacharias, supra note 60, at 303 ("[T]he [ethics code] drafters' conclusion that only a permissive standard can adequately address the plethora of potential cases is perfectly consistent with the expectation that other lawmakers may adopt mandatory rules for subcategories of cases in which concrete standards make sense.").
128. See supra text accompanying note 47.
129. How trial and lower appellate courts can best implement their reconsideration of the codes in light of their inability to rewrite the codes is a question for another day. See generally Zacharias & Green, supra note 7 (discussing possible approaches).
130. See Green & Zacharias, supra note 60, at 323 ("The mere fact that an ethics rule expresses a normative judgment . . . for disciplinary purposes does not signify that the drafters intended to foreclose complementary, supplemental, or even contradictory regulation.").
131. See Stephan Landsman, The Adversary System: A Description and Defense 2-4 (1984) (describing the neutrality and passivity of the arbiter as an essential element of the adversarial process).
132. See supra text accompanying notes 7, 21.
133. Model Rules of Prof'l Conduct R. 3.8(f) (amended 1991). This provision is analyzed in Roger C. Cramton & Lisa K. Udell, State Ethics Rules and Federal Prosecutors: The Controversies over the Anti-Contact and Subpoena Rules, 53 U. Pitt. L. Rev. 291 (1992)
134. and Fred C. Zacharias, Who Can Best Regulate the Ethics of Federal Prosecutors; Or, Who Should Regulate the Regulators?, 65 Fordham L. Rev. 429, 457 (1996).
135. ABA, Resolution on Attorney Subpoenas (1988), reprinted in Max D. Stern & David Hoffman, Privileged Informers: The Attorney Subpoena Problem and a Proposal for Reform, 136 U. Pa. L. Rev. 1783, 1853-54 (1988);
136. ABA, Resolution on Subpoenaing Attorneys Before the Grand Jury (1986), reprinted in Stern & Hoffman, supra, at 1852;
137. see also Fred C. Zacharias, A Critical Look at Rules Governing Grand Jury Subpoenas of Attorneys, 76 Minn. L. Rev. 917, 919-25 (1992) (discussing the rationales for Model Rule 3.8 (f)).
138. The Model Rules were amended in 1995 to eliminate the judicial approval provision. ABA Amends Rules 4.2, 3.8; Moves on Internal Governance, 11 Laws. Manual on Prof'l Conduct (ABA/BNA) No. 15, at 248, 249 (Aug. 23, 1995).
139. The new Model Rules follow suit. See, e.g., Model Rules of Prof'l Conduct R. 3.8(e) (2002).
140. See, e.g., D.C. Adopts New Ethics Rules, Permits Non-Lawyer Partners, 6 Laws. Manual on Prof'l Conduct (ABA/BNA) No. 3, at 53, 55 (Mar. 14, 1990) (reporting the District of Columbia's judicial rejection of a proposed rule modeled on Model Rule 3.8(f));
141. New York's Courts Adopt Changes to Ethics Rules, 6 Laws. Manual on Prof'l Conduct (ABA/BNA) No. 9, at 172, 175 (June 6, 1990) (reporting rejection of Model Rule 3.8(f) by the New York Court of Appeals);
142. see also Baylson v. Disciplinary Bd., 764 F. Supp. 328, 336-41 (E.D. Pa. 1991) (finding a state attorney subpoena rule to be inapplicable to federal prosecutions);
143. cf. ABA Comm. on Ethics and Prof'l Responsibility, Report with Recommendation to the House of Delegates 7 (1995) [hereinafter ABA Report] (on file with author), reprinted in pertinent part in Stephen Gillers & Roy D. Simon, Regulation of Lawyers: Statutes and Standards 249, 250 (1996) (proposing deletion of the judicial supervision and noting "it has been considered and rejected by the bars and governing courts in a number of States . . . . This record reflects a fundamental and widespread doubt about the suitability of Rule 3.8(f) in its current form as a rule of ethics, a doubt that the Standing Committee has come to share.");
144. Zacharias, supra note 73, at 917 (noting that, as of 1992, only six states had adopted the model rule).
145. See Zacharias, supra note 72, at 458-59 ("[T]he original ABA provision was a bald attempt to create an advantage for criminal defendants and criminal defense lawyers unrelated to the 'ethics' policy concerns that purportedly drove the rule. Rather than tailor the rule towards protecting legitimate expectations in attorney-client relationships, the ABA sought to insulate unprivileged information from discovery and to protect defense lawyers from having to withdraw from cases.").
146. Model Rules of Prof'l Conduct R. 3.8(f) (amended 1991) ("The prosecutor in a criminal case shall . . . not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless [certain conditions are met and] . . . the prosecutor obtains prior judicial approval after an opportunity for an adversarial proceeding.").
147. ABA Report, supra note 75, at 8 (noting that Model Rule 3.8(f)(2) is an "anomaly" because, "[r]ather than stating a substantive ethical precept, it sets out a type of implementing requirement that is properly established by rules of criminal procedure rather than established as an ethical norm").
148. See Zacharias, Specificity, supra note 62, at 232 (discussing the codes' goal of influencing substantive law).
149. See Green & Zacharias, supra note 60, at 308-10 (discussing the possible uses of professional code provisions when the law is "in flux").
150. See generally Hazard, supra note 5.
151. See Model Rules of Prof'l Conduct R. 1.6 (1983); Model Code of Prof'l Responsibility DR 4-101 (1980).
152. Nix v. Whiteside, 475 U.S. 157 (1986). The issue was most clearly debated in 1965, before the adoption of the modern legal ethics codes. Compare Monroe H. Freedman, Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, 64 Mich. L. Rev. 1469 (1966) (advocating a client-oriented position)
153. with John T. Noonan, Jr., The Purposes of Advocacy and the Limits of Confidentiality, 64 Mich. L. Rev. 1485 (1966) (advocating a model more oriented to producing truthful testimony).
154. The Model Code of Professional Responsibility included a permissive exception to confidentiality for clients' statements of an intention to commit a crime, but did not explain how liberally the exception should be construed. Model Code of Prof'l Responsibility DR 4-101(C)(3). Simultaneously, while forbidding the use of false evidence, the Code did not specify an exception to confidentiality covering perjury which a lawyer learns of after the fact. Id. DR 7-102(A)(4) (forbidding lawyers to "[k]nowingly use perjured testimony").
155. Model Rules of Prof'l Conduct R. 3.3(b) (1983). The Model Rules, however, included no confidentiality exception covering the client's statements of intent to commit perjury. See Model Rules of Prof'l Conduct R. 1.6(b) (allowing disclosure only to prevent future crimes involving physical harm).
156. Nix, 475 U.S. at 168. Interestingly, on the question that the 1983 Model Rules did not answer - whether lawyers may disclose, or threaten to disclose, the client's intention to commit perjury in advance - the Court assumed inaccurately that the professional codes would require such behavior, leading the Court to approve of the lawyer's threats in Nix.
157. See supra text accompanying notes 26-28.
158. See generally Zacharias & Green, supra note 7 (discussing state supreme courts' role in promulgating legal ethics codes).
159. See generally id. (discussing the role of state supreme courts in rendering disciplinary decisions).
160. See Benjamin H. Barton, An Institutional Analysis of Lawyer Regulation: Who Should Control Lawyer Regulation - Courts, Legislatures, or the Market?, 37 Ga. L. Rev. 1167, 1185-1210 (2003) (discussing reasons why state supreme courts promulgating professional rules tend to be captured by the bar).
161. See generally Zacharias & Green, supra note 7 (arguing that state supreme courts can and should take their function of writing the rules seriously).
162. See id. (focusing on how lower courts should use and respond to professional rules adopted by the state supreme courts).
163. The chief reporter for the Restatement recognized as much. See Wolfram, supra note 2, at 20 (discussing "the uncomfortable fit between law and legal ethics").
164. See Fred C. Zacharias, Integrity and Role Ethics (2007) (unpublished manuscript, on file with the Fordham Law Review) (discussing the value of the professional codes in reinforcing external constraints on lawyers, including universal moral principles).
165. See Fred C. Zacharias, The Purposes of Lawyer Discipline, 45 Wm. & Mary L. Rev. 675, 682-93 (2003) (distinguishing the goals of professional discipline from those of criminal law and discussing what that might mean for disciplinary courts).
166. Arguably, agency, fiduciary, and contracts law provide many of the same constraints on lawyer conduct as the legal ethics codes without producing the externality of lawyers' beliefs that their role somehow places them outside the bounds of universal morality.
167. See generally Zacharias & Green, supra note 7 (discussing situations in which lawyers who follow the codes nonetheless might find themselves subject to judicial sanctions).
168. That, in part, was Susan Koniak's project when claiming that the bar and the courts have different visions. Koniak, supra note 6, at 1402 (describing the vision of the bar and the state as "two competing and sometimes conflicting normative systems, each claiming to legitimate action in accordance with its norms and thus each worthy of the name of 'law'").