Whose Rules of Professional Conduct Should Govern Lawyers in Federal Court and How Should the Rules Be Created

At present, the rules of professional conduct applied in federal judicial proceedings vary from district to district. In reaction to this problem, the Judicial Conference of the United States is studying the question of whether a uniform set of rules of professional conduct should apply in federal judicial proceedings and, if so, what the nature of the rules should be and how they should be developed. The principal proposals under consideration are the adoption of a uniform set of federal rules based on the American Bar Association Model Rules of Professional Conduct or the adoption of a requirement that each federal district court apply the rules of the state in which it sits. This Article demonstrates the shortcomings of these two alternatives and proposes a third: that the federal judiciary undertake rulemaking to develop a single set of highly detailed rules of professional conduct. It argues that the two alternative proposals will require the application of rules that are, in many respects, vague or ambiguous. The meaning of many of these rules would never be clarified, because federal courts rarely have occasion to interpret rules of professional conduct. As to the rules that federal courts would ad-= dress, inconsistencies would abound, because the courts could be expected to adopt varying interpretations. Further, the standards of conduct adopted by interpreting open-textured disciplinary rules in the course of adjudication would likely be less appropriate than standards adopted by judicial rulemaking, because individuals and organizations with relevant perspectives would be denied an opportunity to present their views to the adjudicating court. This Article sets its discussion of the relative merits of the various alternatives in the context of the hotly debated question of whether lawyers may contact represented persons in criminal cases. First, examining a recent Department of Justice regulation addressing this question, it argues that the administrative rule making process is inferior to judicial lawmaking because of the institutional bias of the executive branch, but that rulemaking is otherwise a preferable means of developing standards of professional conduct. Second, examining a recent United States Court of Appeals for the Second Circuit decision on criminal defense lawyers' communications with represented persons, it demonstrates the shortcomings of adopting ambiguous American Bar Association model rules that must be interpreted in the course of adjudication. Finally, it proposes and defends detailed rule making by the federal judiciary as the preferable alternative.