Is the attorney primarily an advocate or an officer of the court? Commentators attacked the discussion draft of the Model Rules of Professional Conduct for emphasizing the latter and for abandoning the adversarial system. They claimed that the draft was revolutionary in departing from traditional ways. This Commentary has suggested that there has been no departure, for David Hoffman, in 1836, also believed that an attorney was, more an officer of the court than an advocate. Should proper attorney conduct be mandated by rules or should ethics be essentially a matter of personal and professional conscience? The drafts of the Model Rules answer that proper conduct can, and should, be guided only by rules. This is new, and a departure from traditional methods. The 1908 ABA Canons and the ABA Code do not rely on rules only. Hoffman's resolutions were not legally enforceable duties. This Commentary has offered an historical perspective on the current legal ethics debate. It has shown that in spite of claims to the contrary, the discussion draft of the Model Rules is traditional in substance while both the discussion draft and the proposed final draft are new in format. Such a showing, however, will not determine what is the best code or the best format for today. Proper legal ethics change as social needs and assumptions change. The legal profession is coming to grips with this fact.
Stephen E. Kalish,
David Hoffman's Essay on Professional Deportment and the Current Legal Ethics Debate,
61 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol61/iss1/4