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The Kutak Commission

In 1977, a commission of the American Bar Association was created and tasked with an initial review, and eventually a complete restatement, of the then existing Code of Responsibility which had been approved by the House of Delegates of the American Bar Association in 1969. This proximity of dates is deceptive, as the 1969 Code was little more than a restatement of canons of ethics that had been in force in most substantial respects for more than 80 years.

Codes of responsibility governing the practice of law have traditionally been the prerogative of the individual states, usually being promulgated by a state supreme court or committee of the state legislature, and without exception establishing a self-governing professional regulatory structure. A history of this process of self-governance commences as early as the 1830s when a practicing lawyer in Maryland published his “Fifty Resolutions” which were essentially an early Victorian exercise in creating slogans of what the author deemed to be appropriate to the practice of law. A more intellectual process in the 1850s involved a series of lectures by a professor at the University of Pennsylvania Law School on the subject of ethics which gained a following in many states at that time. But the first actual codified system of ethics was begun by an attorney and eventual governor of Alabama, Thomas Jones, which eventually became the Alabama Code of 1887. The systemic thinking of Jones embodied in the Alabama Code made it appealing to practitioners elsewhere with the result that it was essentially adopted in many states over the next 20 years. This process, in turn, was furthered by a commission of the American Bar Association (on which Jones was a member) which promulgated Canons of Ethics in 1908 that were, not surprisingly, a restatement of the 1887 Alabama Code. The 1908 Canons of Ethics were ultimately adopted in substance by all of the state self-governance entities.

In the 1960s, the President of the American Bar Association, Lewis Powell (later Mr. Justice Powell of the United States Supreme Court), called for a re-examination of the 60-year old Canons of Ethics, which resulted in the promulgation of the 1969 Model Code of Responsibility. The 1969 Model Code utilized a tripartite form of organization consisting of nine substantive Canons, followed by certain philosophical thoughts (“Ethical Considerations”), and ending with provisions regarding discipline, and it was subsequently adopted by the various state jurisdictional entities. The 1969 Model Code, however, contained little substantive change from its predecessor, the interesting tripartite format notwithstanding. As Bob Kutak noted, it meant that in 1977 the Canons governing the practice of law across the United States represented little more than the restatement of an Alabama code adopted in 1887 which was itself only a formalalized statement of principles of a Pennsylvania professor of the 1850s and some ruminations of a Maryland practitioner of the 1830s.

The year 1977, moreover, was only a few short years following the turbulent Watergate era, which resulted in the threatened impeachment on a bipartisan basis and the actual resignation of a sitting President. Lawyers were intermixed in wrongdoing and questionable conduct and testimony throughout the highly publicized Watergate proceedings. Many in the profession feared the very principle of self-governance of the profession to be at risk and there was talk of the creation of one or more federal investigations of this overall area in the near future.

It is with this history in mind that the American Bar Association created the formally-named “American Bar Association Commission on Evaluation of Professional Standards” and named Robert J. Kutak as the Chairman of the Commission. The tasks confronting the Commission were significant. In addition to important issues raised by Watergate (can lawyers really regulate themselves?), the profession itself and the practice of law had changed enormously over the preceding 90 years. The development of corporations, to cite only one such development, raised conflict issues that the 1969 Model Code left substantially unaddressed. Who or what did a lawyer represent, for instance: the corporate entity, its board, individual directors, its officers? The Commission initially contemplated a series of amendments to the nine existing Canons, but it soon became clear that a complete substantive restatement was both required and desirable, and would take longer and be much more controversial.

Over a six-year period through February of 1983, the Commission produced innumerable drafts of various parts of what became the overall proposal. It received public commentary and reaction, including significant criticism, from virtually every part of the local and state bar associations in each of the 50 states over the 30 month period immediately prior to the compilation of the final draft. Many of its ultimate recommendations were controversial, including particularly provisions regarding confidentiality and conflicts of interest.

The Model Rules were intended, initially, as a national model for all of the various jurisdictions. The goal advocated by Bob Kutak was eventual acceptance of the Model Rules in most jurisdictions by most practitioners within those jurisdictions. It was assumed that there would be dissent from certain areas of the bar and that there would be latitude for adaptation to local traditions and practice where necessary to gain acceptance. The Model Rules further provided enforcement standards for the disciplinary side of a self-regulating profession through a series of requirements and prohibitions, together with delineated ‘safe harbors’ where appropriate. The Model Rules clearly contemplated, however, that in any self-regulatory approach the voluntary adherence of most working professionals is essential. This requires clearly articulated and understandable standards in an integrated text, and the efforts of the Commission were perhaps most noteworthy in this respect. Bob Kutak argued that the Model Rules would provide “a handbook of good lawyering—a guide to those many lawyers who earnestly seek to practice in a professionally responsible way.”

A significant core value in the Model Rules, and one which was probably the most controversial, was the concept that lawyers have obligations relating to the greater social interest in addition to the singular allegiance a lawyer traditionally owed to the client. This was the inspiration of an active practitioner of the securities bar, which Bob Kutak was, and he seemed to relish the vibrant ferocity of the debate on this and other aspects of the proposals as he barnstormed across the country in the early 1980s, defending the recommendations of the Commission to state and local bar associations and to the law schools.

Robert J. Kutak died on January 23, 1983, but the work of the Commission at that time was complete and its final draft, formally designated the “Model Rules of Professional Conduct”, was approved overwhelmingly by the House of Delegates of the American Bar Association in August of that year with only minor revisions to the work of the Commission. Eventually, the supreme court or legislative committee having jurisdiction of legal ethics in 49 states approved the Model Rules of the Kutak Commission in most substantive respects, and they remain today the “handbook of good lawyering” that was the intent of the Commission and its Chairman, Bob Kutak.