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63 A.B.A. J. 639 (1977)
Wanted: A New Code of Professional Responsibility

handle is hein.journals/abaj63 and id is 641 raw text is: AMERICAN BAR ASSOCIATION JOURNAL May 1977 Serviceable as it has been, the Code of Professional Responsibility is but a stage in the development of rules of legal ethics into rules of law. Wanted: A New Code of Professional Responsibilit By L. Ray Patterson T HE TIME has come to renounce completely the fiction that ethical problems for lawyers are mat- ters of ethics rather than law. The fiction pervades the Code of Professional Responsibility and is its major shortcoming. Even so, those who criticize the present code as a failure miss the point: it is a transitional document, representing a middle stage in the de- velopment of law for lawyers. The hortatory tone of the canons, the undue concern for protecting the pro- fession in many of the ethical considerations, and the self-serving nature of many of the disciplinary rules are points to criticize, but they should not obscure the fact that the code is a major step forward. To see how far we have come, it is helpful to look back to where we were. The code's predecessor, the Canons of Professional Ethics, was little more than a collection of pious homilies, an observation less criti- cal than it sounds when we trace their origin back through the Alabama Code of Ethics of 1887 to Judge Sharswood's Essay on Professional Ethics of the 1890s. Indeed, the canons, despite their primitive nature from a legal standpoint, served a valuable function in establishing the notion that lawyers have a duty to be ethical in their professional work. The fact that the duty was merely an ethical one means only that the canons represented an early stage in the development of law for lawyers. Most law has its origin in a felt sense of right and wrong and begins from an ethical basis. Once that basis is established, lawyers can then rationalize the ethical rules until the legal rules are fully realized. The process of developing rules of legal ethics into rules of law has been a slow one, but progress has been made. The Code of Professional Responsibility is a credit to the profession; it begins to treat standards for the lawyer's conduct as an integral part of the law. The overlay of ethical considerations is heavy, but the disciplinary rules are present. -'The code suffers, however, from a defect common to the adolescent stage of growth, whether in organiza- tions, law, or people. It is rigid and simplistic, complex and contradictory, and difficult to read. Part of the fault is in its failure to recognize fully that the legal profes- sion is not unitary and monolithic and that the legal system in which the lawyer works is not unitary and monolithic. The code does not provide the individual lawyer with adequate guidelines to deal with ethical problems, for it does not reflect the realities of legal life. The lawyer in his office does not face the same problems of ethics as the lawyer in the court- room. Moreover, lawyers do not analyze ethical prob- lems with either the skill or precision they demonstrate in dealing with legal problems, and under the code the notion that problems of ethics are not real legal prob- lems lingers. A new Code of Professional Responsibility is needed to provide the necessary guidelines and to give full recognition to the principle that lawyers' standards are May, 1977 9 Volume 63 639

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