To Provide a Common Conceptual and Linguistic Vocabulary in Order to Foster Ethics Dialogue and Education: The Nebraska Supreme Court Should Adopt the Revised Model Rules—The "Bright Line" Rule Example
Thirty years ago, the Nebraska Supreme Court adopted the American Bar Association's 1969 Model Code of Professional Responsibility. In 1983 the ABA recommended that states abandon its old Model Code and adopt its new Model Rules of Professional Conduct. In 2002 the ABA revised the 1983 version of the Model Rules, and it now recommends states adopt these revisions to the Model Rules. The most important reason Nebraska should adopt the revised Model Rules is they provide a conceptual and linguistic vocabulary for ethics dialogue and education. However, if the same words are used in different ways, conversation will be confused and impeded rather than facilitated. Here, I discuss one example of a case in which the Nebraska Supreme Court adopted the Model Rules' common vocabulary but interpreted its language in an uncommon way. The court ventured on its own to adopt a "bright line" rule to resolve conflicts that arise when a lawyer or student law clerk leaves one firm to work on her own or with another firm. The Nebraska Supreme Court did not follow the prudent course of adopting the relevant Model Rule in its entirety. It first articulated a "bright line" rule in a judicial opinion. It then reiterated the rule in Disciplinary Rule 5-108(B), using the common vocabulary of the Model Rules of Professional Conduct. It then interpreted the common language in its own way. Why was the common language used? Why the different interpretation? What was the court trying to do? What policy was it trying to advance? Were its goals similar to the ABA's goals? None of this is clear.
Stephen E. Kalish,
To Provide a Common Conceptual and Linguistic Vocabulary in Order to Foster Ethics Dialogue and Education: The Nebraska Supreme Court Should Adopt the Revised Model Rules—The "Bright Line" Rule Example,
81 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol81/iss4/5