Why the ABA Bothers: A Functional Perspective on Professional Codes
![handle is hein.journals/tlr59 and id is 721 raw text is: Why the ABA Bothers: A Functional
Perspective on Professional Codes
Deborah L. Rhode*
I. Introduction
In January 1980, just ten years after the American Bar Association
adopted the Model Code of Professional Responsibility,' a special
ABA commission chaired by Robert Kutak recommended compre-
hensive reformulation of that document.2 The Kutak Commission's
suggested replacement, the Model Rules of Professional Conduct, has
generated considerable controversy within the profession, culminating
in a large volume of comment and two counterproposals.3 So heated a
debate invites the question suggested by the titles of this and Professor
Abel's articles.4 Of course, at one level of generality, the answer seems
self-evident. As both the history and content of ABA codifications
make plain, the bar bothers because its interests so dictate. Like any
other occupational group, the ABA formulates and fulminates for its
health, collectively speaking. What is less obvious, and what this Arti-
cle will explore, is the range of concerns at stake in the codification
enterprise and the wisdom of placing that endeavor under bar control.
From the profession's standpoint, codes of ethics are a primary
instrument for attaining what Talcott Parsons posited as the dominant
* Assistant Professor of Law, Stanford University. B.A. 1974, J.D. 1977, Yale University.
The comments of Professors Paul Brest, Lawrence Friedman, John Kaplan, Michael Moore,
and William Simon on an earlier draft are gratefully acknowledged.
Financial support was provided in part by the Stanford Legal Research Fund, made possible
by a bequest from the Estate of Ira S. Lillick and by gifts from Roderick E. and Carla A. Hills and
other friends of the Stanford Law School.
I. ABA MODEL CODE OF PROFESSIONAL RESPONSIBILITY (1980) (originally published
1970) [hereinafter cited as CODE].
2. ABA MODEL RULES OF PROFESSIONAL CONDUCT, Introduction, at i (Proposed Final
Draft May 1981) [hereinafter cited as MODEL RULES FINAL DRAFT]. The Final Draft followed
several earlier drafts, the most recent of which was released in January 1980. See ABA MODEL
RULES OF PROFESSIONAL CONDUCT (Discussion Draft Jan. 1980) [hereinafter cited as MODEL
RULES DISCUSSION DRAFT].
3. See sources cited at notes 105, 133-35 & 139 infra. The counterproposals are RosCoE
POUND-AMERICAN TRIAL LAWYERS FOUNDATION, THE AMERICAN LAWYER'S CODE OF CON-
DUCT (Discussion Draft June 1980) [hereinafter cited as AMERICAN LAWYER'S CODE], and NA-
TIONAL ORGANIZATION OF BAR COUNSEL, REPORT AND RECOMMENDATIONS ON STUDY OF THE
MODEL RULES OF PROFESSIONAL CONDUCT (Aug. 1980).
4. Abel, Why Does the ABA Promulgate Ethical Rules?, 59 TExAs L. REV. 639 (1981).
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Why the ABA Bothers: A Functional Perspective on Professional Codes
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