UPDATE (June 22): After reading the Puerto Rico Supreme Court's resolution and most of the new rules, I am revising my post from June 19. The updated version appears below. I was wrong about one of my initial comments, which I eliminated here, and substituted that (wrong) first impression with a couple of new ones. I also added a few links.
Here is the updated post:
After decades of work on a new Code of Professional Conduct, two days ago the Puerto Rico Supreme Court announced the adoption of a complete new code to be known as "Reglas de Conducta Profesional de Puerto Rico" (or Puerto Rico Rules of Professional Conduct) based on the ABA Model Rules.
The rules were adopted as a resolution issued by the Supreme Court, which reflects the fact that not all Justices agreed on everything. One justice issued a lengthy opinion in which he actually dissented on the approval of certain provisions. Others issued separate opinions in which they also objected to some aspects of the approved rules. Yet, even though they did not all agree on everything, they all voted to approve the project, so the rules will go into effect in January 2026. You can read the Court's resolution and the Justices' opinions here. You can read the new rules in full here.
The rules are indeed a completely new approach to the regulation of the profession in the island which up to now had been mostly based on an antiquated code based on the ABA Canons of 1908. The rules are a translated version of the Model Rules but they are also are unique in some ways.
Here are my top ten first impressions, in no particular order.
1. Rules unique to the practice of law in the island
Because Puerto Rico's legal system is the result of a combination of the Spanish Civil Law tradition and the American Common Law system, there are some peculiarities to the practice of law in the island and these are reflected in the new rules. In fact, in the Supreme Court resolution adopting the new rules, some of the justices disagreed on how these peculiarities should have been addressed. The main peculiarity is that, following the Spanish law tradition, only lawyers can be notaries so being a notary is actually a common element of the practice of law. However, the function of a notary is different than that of a lawyer in that the notary does not really "represent" anyone. For that reason, the justices were divided on the general question of whether the rules of professional conduct should have included the regulation of the functions of notaries. At least two of them opined that this topic should have been addressed in a separate set of rules designed specifically to regulate that aspect of the practice of law. After all, many lawyers choose not to become notaries.
2. "Lost in Translation"
Although there are some unique rules, and some discrepancies with the original ABA Model Rules, the newly adopted rules are for the most part a literal translation of the ABA Model Rules. From my first quick reading, I have to say that, for the most part, the translation is accurate, but there are a few instances where it might cause some issues. For example, the adopted rules often translated the word "shall" in the Model Rules (which was carefully chosen to denote a mandatory duty) with a word in Spanish which is more like "should" which does not necessarily have the same connotation. I don't think this will be an issue given the clear history of the Model Rules, but the drafters could have been more careful about it. Also, there is a Model Rule that refers to "material evidence" while the translation refers to "relevant evidence." These two concepts do not mean the same thing and, again, may or may not result in some confusion.
3. Subtle changes that may or may not have been intended
Maybe because of translation discrepancies -- or maybe not -- there are other instances where the chosen translation results in more significant changes. For example, Model Rule 1.8(i) is limited to litigation, while the adopted translation omits the word litigation, creating the impression that the rule could apply to any type of representation. That would make the rule in Puerto Rico much more broad in application than anywhere else. I suspect this was an inadvertent mistake. Likewise, while the Model Rule regarding pro bono services suggests a minumum of 50 hours of pro bono sevices per year, the adopted translation simply says "a reasonable number of hours." It is fair to assume this was a deliberate/intended change and not a mere mistake in translation.
4. Civility as a rule
The rules adopt a standard for civility in certain aspects of the practice of the profession that is not present in the Model Rules. See Rule 8.2, for example.
5. Technological competence
The rules adopt a new rule specifically mandating technological competence. This is a concept that has been adopted in now a majority of American jurisdictions but it has mostly (if not exclusively) been done as part of the comment to rule 1.1. In Puerto Rico, it is now an actual rule and it is a mandatory rule. (See Rule 1.19). For comments on the new rule go here (in Spanish by a UPR Law School Professor) and to LawSites (in English).
6. Non-lawyer ownership in law firms
Although the new rules copy the Model Rules' ban on sharing fees with non-lawyers, they allow for non lawyers to invest in and, thus, partially "own" shares in law firms as long as that ownershhip does not exceed 49%. At least one Justice of the Supreme Court dissented on this point and another expressed serious reservations about it. I might expand on this topic in a separate post, but for a short comment on the new rule (in English), go to LawSites.
7. The new rules do not fix the problems with Model Rule 8.4(g)
In translating the text of Model Rule 8.4(g), the drafters of the new Puerto Rico rules do not appear to have considered the debate on, and recent cases challenging, the constitutionality of the text of the Model Rule (after it was adopted in several states). Long time readers of this blog know that I think that, as drafted, the Model Rule is of questionable constitutional validity and that a similar rule has been found to be unsonstitional by at least one court already, while there are cases with similar challenges still pending in other states. Yet, some states have adopted better versions of the rule that appear to be much better drafted. The best is probably the version adopted in New York, with the one adopted in Illinois coming in as a close second. But, in any case, the point here is that the Model Rule is actually not a good model for this rule and that it could have been fixed with some re-drafting as part of the translation. That was not done and it leaves the door open to a constitutional attack.
8. Missed opportunities
The drafters of the new Puerto Rico rules missed another opportunity to correct poor drafting in the Model Rules in Rule 1.7 regarding conflicts of interest. Again, given the long hisotry of the Model Rules, I don't think the poor draftmanship will cause a major issue, but I wish it had been corrected. The problem is that the text of the Model Rule confuses the concepts of a concurrent conflict of interest and a successive conflict of interest. Model Rule 1.7 should eliminate the words "former client" from section (2), or the words "current clients" from its title and the word "concurrent" from the first paragraph.
9. The rules finally clarify issues related to lawyer advertising
Although the Puerto Rico Code of Conduct was amended at some point after the US Supreme Court decided Bates, the case law interpreting this area of the law has always been confusing which resulted in a chilling effect on lawyer advertising in the island for many years. With the adoption of the new rules, this confusion should be clarified.
10. Debate on whether to adopt Model Rule 3.8
While the justice who wrote the long opinion expressing his views on many of the rules stated that a rule to specifically regulate the conduct of prosecutors was "particularly beneficial," another judge argued that the rule should have been rejected because it was an intrusion on the function of the Department of Justice. I was surprised by this opinion.
BONUS: The new rules (thankfully) finally abandon the notion of "appearance of impropriety" as a possible basis for discipline.
