Puerto Rico adopted its current Code of Ethics in 1970, but its content is essentially a copy of the ABA Canons of 1908, with a few changes derived from the ABA Model Code and one amendment regarding advertising adopted in 1980. For some reason, there has been very little interest in updating the Code since then. Back in 1996, the Puerto Rico Bar Association created a commission to prepare a new code, which, in 2000, recommended that adoption of the ABA Model Rules. Inexplicably, it wasn’t until 2005 that the Bar Association submitted the project and recommendation to the Puerto Rico Supreme Court and, even worse, it was not until 2013 that the Supreme Court considered the proposal. Then, abruptly and without any explanation, the Court issued an order in December 2013 rejecting the proposal in full.
Surprisingly, however, in the same order, the Court announced that it would consider another proposal that had already been prepared by the Commonwealth’s Judicial Conference. This was a surprise because there had been no announcement about this project until it was announced in the order. In fact, to this day, it is not known who participated in the project or when it was prepared. Yet, this new proposal is now being considered and may get approved by the Supreme Court this year.
The fact that there is a project on the table is a step in the right direction since the Code is long overdue for a complete revision. Unfortunately, in my opinion, it is more of a misstep than anything else. Instead of looking at the more modern sources of information about the regulation of the profession, the proposal copies material from a very strange combination of sources that includes, among many, the ABA Model Code and the Canons of 1908. In the end, it is a very mixed result, with some sections that are up to date with new approaches to the subject matter and others that are already outdated. Most surprising is the fact that the project has both canons (which are all aspirational) and rules (some of which are mandatory and some of which are permissive), which results in confusion over which sections are meant to be the basis of discipline.
In evaluating the structure and content of the project it would be helpful if we knew more about the deliberative process that resulted in the approval of the project, but the project does not include a legislative record or history with documentation that explains how any decisions about its content were reached. Also, the project itself does not have any substantive comments that explain or help interpret the text.
In sum, the Puerto Rico Supreme Court is considering a project with questionable content, that was prepared in secret and which does not provide background information, legislative history or comments that explain the reasoning behind the views and approaches it takes. Given these deficiencies it is debatable if the project is better than the old Code that currently applies in the island.