Comment on Puerto Rico's newly adopted rule on technological competence

 As you probably know, paragraph 8 of the comment to Model Rule 1.1 (Competence) states, among other things, that "to maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology."  This statement has since been adopted and integrated into the comments of the rules in about 40 states.

Puerto Rico, however, recently adopted new rules (based on a translation of the Model Rules) and the notion of technological competence appears in a specific rule rather than in a comment to the rule on competence.  

In a comment posted in Above the Law, the author argues that "the Puerto Rico Supreme Court came out with a much more realistic and impactful definition of a lawyer’s technological competence obligations than that promulgated by some 40 states" and that "the Puerto Rican rules are a stronger statement about competence and suggest why it is so important."

You can read the full comment here.

Comment on Puerto Rico's newly adopted rule that allows non-lawyers to partially own law firms

 Bob Ambrogi has posted a comment on Puerto Rico's newly adopted rule allowing non-lawyers to partially own Law Firms here.

Puerto Rico adopts the Model Rules of Professional Conduct - UPDATED

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, in English, to LawSites and Above the Law, here.

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.

Puerto Rico Supreme Court invalidates statute of limitations for disciplinary proceedings

Back in 2016, the Puerto Rico legislature adopted by statute a statute of limitations for disciplinary proceedings.  See here.  I felt so strongly against this that I actually wrote a letter to the Governor urging him not to sign the bill into law.  He didn't listen.  Then, after the bill became law, I published a short article arguing many reasons why the bill should have been rejected.  See here.  But nothing happened.  Then I published a law review article explaining everything I thought was wrong with the bill.  See here.  But nothing happened.  Until last month.

On August 11, the Puerto Rico Supreme Court issued an opinion in a case called In Re Pellot Córdova, in which it invalided the statute of limitations for violating the principle of separation of powers.

So I guess it took four years, but finally someone got it right in the end.  

Puerto Rico Bar Association has filed an injunction petition in federal court to halt the implementation of new regulation that imposes mandatory pro bono and low paying mandatory appointment to represent clients in both civil and criminal cases

At some point in 2018, the Puerto Rico Supreme Court adopted a set of rules for the assignment of cases to court appointed attorneys (“Reglamento para la Asignación de Abogados y Abogadas de Oficio de Puerto Rico “) which is set to come into effect on January 1st, 2020.

According to this new system, some lawyers in private practice in Puerto Rico are obligated to be available to provide legal services to clients in both civil and criminal cases when appointed to do so.  The first 30 hours of service must be provided free of charge.  Thereafter, lawyers will be paid at the rate of $30.00 per hour for out of court work and $60.00 per hour for in court or appellate work.  These fees, however, are not to be recovered from a line item in the government’s budget and it is unclear as to whether the government will be able to generate the money to pay them.

In anticipation to the implementation of the new regulation, the Puerto Rico Bar Association (El Colegio de Abogados y Abogadas de Puerto Rico (CAAPR)) has filed a complaint and request for injunction in Federal District Court alleging that the regulation is unconstitutional.

Among other things, the complaint argues that the regulation exempts or excludes broad categories of attorneys from having to provide free legal services including lawyers in public service and those that provide ad honorem services for the judicial branch.

In addition, the complaint argues that forcing only some lawyers to provide legal services for free or for such low rates of compensation that are not enough to cover overhead expenses constitutes deprivation of life, liberty, or property, without due process of law, and a violation of the equal protection of the law.

You can read the complaint here. 

How not to practice law: mock President Trump in a brief

The lawyers for a group of mayors in Puerto Rico have been ordered to refile an amicus brief because of what a federal judge considered indecorous conduct.  And what was the conduct, you ask?   Putting quotation marks around the word honorable when referring to President Trump (ie, as in the "Honorable" President Trump.)  The judge also held that “A court of law is no place to mock, ridicule, or politically attack the president.”  No other sanctions were imposed on the lawyers, though.  The case is called Club Gallistico de Puerto Rico Inc. v. U.S. , D.P.R., No. 19-cv-1481, 10/15/19.

The Court's order reads, in full:

The Court hereby STRIKES the Brief of Amicus Curiae in Support of Plaintiffs filed by
amicus party Asociación de Alcaldes (Docket No. 43). Rule 12(f) of the Federal Rules of Civil Procedure allows considerable discretion to a district court in striking “any redundant, immaterial, impertinent, or scandalous matter.” FED. R. CIV. P. 12(f); see also Alvarado-Morales v. Digital Equip. Corp., 843 F.2d 613, 618 (1st Cir. 1988). To insert ironic quotation marks in a brief’s heading when referring to the President of the United States’ official title (“Hon.”) constitutes an indecorous action by the Asociación. A court of law is no place to mock, ridicule or politically attack the President. The Asociación de Alcaldes shall file a corrected version of its brief by Friday,  October 18, 2019 at 12:00 p.m. 

Another challenge to the notion of a "unified bar" -- this one in Oklahoma -- UPDATED

A few days ago I posted a story about a challenge to the constitutionality of the unified bar system in Texas.  See here.

Today's news is that a similar lawsuit has been filed in Oklahoma.

The lawsuit, in a case called Schell v. Williams, filed on March 26, alleges that Oklahoma's requirement that attorneys join the state bar association to practice in the state is unconstitutional because by forcing attorneys to join the Oklahoma Bar Association, the state violates their First Amendment rights to free speech and association

As I discussed in my previous posts on this, this is not a new argument but it is not a frivolous argument.  The question really goes to the core of whether such a requirement is necessary to regulate the legal profession or improve the quality of legal services.  As of right now, there are similar challenges pending in, at least, Texas and North Dakota and the results in these cases will have national implications.

UPDATE 4/5/19:   As I have said elsewhere, the question of whether mandatory membership in a bar association violates the First Amendment is not a new issue, so it is interesting that it is making such a strong comeback. In addition to the cases I reported recently, I was recently reminded by a reader of the blog that there are two separate lawsuits filed on similar grounds in Oregon as well as ongoing longstanding litigation against the Washington State Bar.

In Oregon, at least one of the lawsuits contends that the fact the state bar published a statement condemning White Nationalism and, what it called the "normalization of violence" was "blatantly political" and unconstitutional.

UPDATE 5/28/19:  Another lawsuit claiming requiring lawyers to be members of the state bar association violates the First Amendment has been filed.  The case is called Jarchow v State Bar of Wisconsin (Case No. 3:19-CV-00266) was filed, you guessed it, in Wisconsin on May 21. 

Puerto Rico considers implementing IOLTA type rules; comments requested

As you probably know, IOLTA (short for "interest on lawyer trust accounts") programs are a mechanism for funding legal services for the poor. They require attorneys to place certain funds in interest generating accounts and banks to provide the interest to an agency that uses it to provide funds for legal services. All states and the District of Columbia have IOLTA programs. (About a decade ago, the program in DC became mandatory; see here).

Now comes news that the Supreme Court of Puerto Rico is considering adopting a similar program.  The text of it (in Spanish) is available here.  Comments should be sent to SecretariadoConferenciaJudicialyNotarial@ramajudicial.pr

If you want to learn more about the basics of IOLTA programs, you can listen to this short podcast.  Also, here is a short post on common mistakes lawyers make when handling an IOLTA account. If you want to read about the typical debate as to whether IOLTA programs are unconstitutional, you can take a look at this article, although that is only one of many, many others on the subject.

Texas lawsuit challenges mandatory membership in State Bar Association

Three Texas lawyers have filed a federal lawsuit claiming that mandatory membership in the State Bar of Texas violates their First Amendment right against coerced speech because the State Bar Association is using members’ mandatory dues, among other things, to fund programs that help undocumented immigrants seeking asylum, diversity initiatives and programs related to access to legal representation.  The case is called McDonald v. Longley and you can read the complaint here.

The question of the constitutionality of an integrated bar is not new.  In 1961, the US Supreme Court rejected a constitutional attack of mandatory membership in state bar associations in a case called Lathrop v. Donahue, 367 US 820 (1961). Also, in Cuyahoga Cty. Bar. Assn. v. Supeme Court of Ohio, 430 US 901 (1977), the Court summarily affirmed a lower court ruling on the constitutionality of a mandatory annual fee to support a state bar and disciplinary system. However, the free speech and free association arguments advanced in Lathrop were not rejected by the prevailing opinion. The Court simply found that more facts were needed for them to be considered. Other courts, however, have found that mandatory fees need to be related to bar organization matters.

Also, I discussed in some detail the back and forth history of the issue in Puerto Rico here.

The Texas Bar allows its members to opt out of supporting causes they do not believe in, but the plaintiffs in the lawsuit allege this system is inadequate.  At the very least, they argue, the system should be one in which the members would be required to "opt in" to avoid forcing them to fall into the default position of supporting causes they may or may not agree with.

Courthouse News and The ABA Journal have stories on the Texas lawsuit here and here.  According to the ABA Journal's story, the Texas lawsuit is among at least four current lawsuits that challenge mandatory state bar dues.

Puerto Rico adopts statute of limitations for disciplinary proceedings

About two weeks ago, the Governor of Puerto Rico signed into law a bill that creates a 3 year statute of limitations for disciplinary proceedings (subject to a few exceptions).  As you may know, the majority of the states follow the approach suggested by the ABA in Rule 32 of the Model Rules for Disciplinary Enforcement, the comment to which states:

Statutes of limitation are wholly inappropriate in lawyer disciplinary proceedings. Conduct of a lawyer, no matter when it has occurred, is always relevant to the question of fitness to practice. The time between the commission of the alleged misconduct and the filing of a complaint predicated thereon may be pertinent to whether and to what extent discipline should be imposed, but should not limit the agency's power to investigate. . . .

Discipline and disability proceedings serve to protect the public from lawyers who are unfit to practice; they measure the lawyer's qualifications in light of certain conduct, rather than punish for specific transgressions. Misconduct by a lawyer whenever it occurs reflects upon the lawyer's fitness.

If you can read Spanish, you can read my comment on the newly adopted statute in Puerto Rico here.  In that article I argue that adopting the new statute does not make much sense for a number of reasons:

1.  There is no need to adopt a statute of limitations because there is precedent that holds that a disciplinary action should be dismissed if the amount of time the state has taken to file the complaint has placed the attorney in question at a disadvantage.  Under that approach, cases are decided on a case by case basis depending on whether the passage of time has had a detrimental effect on the attorney's ability to defend himself or herself against the allegations.

2.  There is no logic in placing the statute in the Puerto Rico Civil Code.  The statute of limitations should be in the rules for disciplinary enforcement.  In fact, the Puerto Rico Supreme Court is currently considering a proposal to establish new rules.  The Legislature should have deferred to the Supreme Court at least until it finished its revision of the rules.

3.  The majority of American jurisdictions do not have a statute of limitations for disciplinary actions, and the time period adopted in Puerto Rico is shorter than almost all of those adopted in the few jurisdictions that have adopted one.

4.  Although the statute does recognize an exception for conduct that constitutes a crime, it does not recognize an exception for cases of non-criminal intentional conduct.  In fact, the statute makes no distinction among different types of conduct.

5.  The Puerto Rico Supreme Court is currently considering new rules for disciplinary procedures and new rules of professional conduct.  The proposal for disciplinary proceedings has two options as to a possible statute of limitations.  The first one is not to adopt a statute; the second one is to adopt a 5 year statute of limitations with a series of exceptions.  The drafters wanted to give the Supreme Court the alternatives and let it decide.  The Legislature has now taken that decision from the Court.  Some have argued this is a violation of the principle of the separation of powers.

Puerto Rico considers adopting new Code of Ethics

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.

Florida Bar considers three hot topics: multijurisdictional practice, a national bar exam and legal services by non lawyers

Talk about timing!  Tomorrow morning I am leaving town to go speak at a conference in Puerto Rico on the future of the regulation of the profession.  For my talk I used the title "Current Debates on the Regulation of the Profession" and in it I outline a few topics I think are the current (or next) "big things" in the field of professional responsibility.  In my opinion, these are: the possibility of allowing non lawyers to provide some legal services, the possibility of allowing lawyers to form partnerships with non lawyers or to get non lawyer investors, the possibility of a national bar exam and issues related to multijurisdictional practice.

So, while I was reading my notes one more time just a few minutes ago, the Puerto Rico Supreme Court issued an opinion on admission by motion (that underscores the debate on mutijurisdictional practice in the island) and the Florida Bar Association posted a podcast discussing these exact same issues!  The podcast appears below and you can listen to it by pressing on the play button, or by going here.   More proof that these topics are pretty "current", I guess.

Puerto Rico Supreme Court invalidates statute that made Bar Association membership mandatory

Last week the Puerto Rico Supreme Court issued an opinion resolving a debate that had been hanging over the legal profession in the island for decades: whether it is constitutional for the state to mandate that attorneys join the Puerto Rico Bar Association. The case is called Rivera Schatz v. Estado Libre Asociado, and you can read the opinion (in Spanish) here.

The background story is long, but I will summarize it as best as I can. In 1932, the Puerto Rico legislature enacted a statute creating the Puerto Rico Bar Association (known in Spanish as the Colegio de Abogados) and making membership mandatory for all attorneys. Failing to pay the Bar Association's dues was, thus, a sanctionable offense. That statute was challenged at some point in the 1980s by about 100 attorneys who refused to pay the membership dues arguing that the "integrated bar" requirement was an unconstitutional infringement on the attorneys' rights to freedom of speech and association.

As a result of that long litigation in the 1980s (Schneider v. Colegio de Abogados) a system was adopted for Bar Association members to specifically designate what their fees could be used for. Once this was in place, the Bar Association could claim the members were not in a position to claim their constitutional rights to free speech and association were violated.

The saga did not end there, of course.  The next chapter began in 2009 when the legislature amended the 1932 statute to eliminate mandatory bar membership as a requirement to practice law.

Arguing that the legislature had infringed on the Supreme Court's "inherent power" to regulate the profession, the Bar Association sued to challenge the new law. This challenge was decided in 2011 when the Court denied the Bar Association's cert petition with an order holding that the legislature's decision to eliminate mandatory bar membership did not infringe on the Court's inherent power to regulate the profession and was not in violation of the principle of separation of powers.

Three years later, the legislature (now controlled by a different political party) enacted yet another law restoring mandatory Bar Association membership, and, as you would expect, that law was then challenged by opponents of an integrated bar. It is this challenge that the court decided last week.

Given its decision against the Bar Association in 2011, it is not surprising that the Court again decided against a mandatory integrated bar. What is surprising, though, is that it does so by adopting the position it rejected back then. In the new opinion, the Court concludes that the adoption of a statute constituted an infringement on its "inherent power" to regulate the profession and a violation of separation of powers.

Of course, the question of the constitutionality of an integrated bar is not unique to Puerto Rico. In 1961, the US Supreme Court rejected a constitutional attack of mandatory membership in state bar associations in a case called Lathrop v. Donahue, 367 US 820 (1961). Also, in Cuyahoga Cty. Bar. Assn. v. Supeme Court of Ohio, 430 US 901 (1977), the Court summarily affirmed a lower court ruling on the constitutionality of a mandatory annual fee to support a state bar and disciplinary system. However, the free speech and free association arguments advanced in Lathrop were not rejected by the prevailing opinion. The Court simply found that more facts were needed for them to be considered. Other courts, however, have found that mandatory fees need to be related to bar organization matters.

This last point is important for the Puerto Rico situation because the underlying fight has always been about the Bar Association's use of its funds to support causes some of the members find objectionable.

For much of its history, the Puerto Rico Bar Association has been thought of as a "liberal" organization which has supported causes like women's rights, environmental protection, access to legal services and which has expressed opposition to the United States use of parts of the island for military operations, and so on. Lawyers who have opposed the integrated bar concept have long objected to the Bar Association's involvement in what they consider to be political questions, arguing it uses dues money to advance positions the members do not necessarily agree with.

Interestingly, how to deal with the opposition to the use of the funds was one of the questions that the Schneider case in the 1980s actually decided.

But the story ends, for now at least, last week when the Supreme Court should be free to choose whether to join the Bar Association.

I wonder if the Bar Association will take the chance to go to the US Supreme Court and ask it to consider what it left undecided in Lathrop.

Stay tuned....

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.