Saturday, October 18, 2014

Supreme Court of Puerto Rico rejects proposal to adopt ABA Model Rules

After writing about the recent decision by the California Supreme Court to reject a proposal to adopt the ABA Model Rules, I realized that I had not commented on the fact that the Supreme Court of Puerto Rico had recently decided to do the same thing.

Even though it was approved in 1970, the current Code of Professional Conduct in Puerto Rico is essentially a translated and amended version of the ABA Canons of 1908 with some influence from the ABA Model Code.  And, even though the ABA abandoned the Model Code in favor of the Model Rules in 1983, Puerto Rico has not made any changes to its Code since it approved one amendment in 1980 (to update the canon regarding advertising).

In 2005, a Commission appointed by the Puerto Rico Bar Association to draft a new Code presented its proposal to adopt a new set of rules based on the ABA Model Rules.  However, for some unknown reason, the Puerto Rico Supreme Court sat on the proposal for eight years and then, without explanation, announced in an order last December that it rejected the proposal in its entirety. You can find the Court's order here (in Spanish).

Surprisingly, at the same time the Court also announced that there was another project that had already been prepared by the Judicial Conference.  You can find that project here.  The Court said it would consider the project this year, but given that it took it eight years to consider the previous one, it is difficult to know what to expect.

The new project is a very odd combination of materials based on sources from the ABA Model Code, the Model Rules and Codes from other countries.  It has sections called "canons" which read like they are meant to provide inspiration rather than regulation (like the "ethical considerations" of the Model Code) and sections called "rules" that attempt to provide more guidance for disciplinary matters.  In my opinion, the rejected project based on the Model Rules was much better, but it appears that one will not be revised now.

It remains to be seen what will happen.  There is a debate as to whether the new proposal is better than keeping the obviously inadequate current Code or whether the new proposal is so bad it should be rejected until a better one can be drafted.  When I first saw the documents, I felt that anything would be better than the current system, but the reporter of the recently rejected proposal to adopt the Model Rules almost has me convinced that it would be better to start from scratch.  The University of Puerto Rico Law School is considering putting together a conference on the subject and I have already agreed to be one of the speakers.  Get in touch with me if you want more information on this.