Let’s start out with an overview of the history of professional ethics. In 1908 the ABA adopted the Canons of Professional Ethics. The Canons contained 47 straight forward statements of what lawyers could and could not do. In 1969 the ABA adopted the Code of Professional Responsibility. That code was drafted by 15 lawyers from around the nation and the chair was Ed Wright of Wright, Lindsey, and Jennings. As I said, this code was adopted by the ABA in 1969. On 2/23/1970 the ARSC said we will adopt this code. We were the first state in the nation to adopt this Code of Professional Responsibility. This code swept the nation in the next year and virtually every jurisdiction had adopted this Code of Professional Responsibility. It was viewed as modern and comprehensive. This code was divided into 3 parts. First, there were 9 canons which were very simple, general statements. Underneath those 9 canons we had the disciplinary rules. These were the so called “dr’s.” They were the minimum standard. They said “if you do this wrong, you are going to be sanctioned.” “If you breach confidentiality and here is the definition of confidentiality, you are going to be sanctioned.” The third component of the Code of Professional Responsibility were the ethical considerations, the so called ec’s. They were the higher standards that good lawyers should aim for. So that was the three part structure that was adopted in Arkansas and everywhere else.
This lasted for about 10 years, but within a decade this whole structure began to fall apart. And it fell apart in the late 1970’s for several reasons. Some of the provisions of the code were declared unconstitutional; some of the provisions were viewed as incompatible as developing trends in the legal nation emerged; and some thought the difference between the dr’s and the ec’s was incomprehensible. It also did not reflect the changing nature of the legal profession in...