All lawyers need to know about the ethical rules that govern their profession. These rules are contained in Rules of Professional Conduct adopted by each jurisdiction, as well as in advisory opinions and court decisions. Statutes and administrative regulations may also affect a lawyer’s ethical obligations.
Most jurisdictions base their rules on the ABA’s Model Rules of Professional Conduct, although meaningful differences exist among jurisdictions.
To practice with minimum competence, a lawyer should be familiar with either the model rules or the rules within their jurisdiction. The “knowledge” needed for minimum competence does not require detailed memorization of these rules. On the contrary, lawyers should develop the habit of referring directly to the rules (as well as the accompanying comments and any advisory opinions) whenever ethical questions arise. The knowledge lawyers need is sufficient familiarity with the rules to recognize ethical issues when they arise.
An effective way to assess the knowledge of professional conduct needed for minimum competence would be through an open book exam in which candidates are free to refer to the rules and their comments. This format would test the level of knowledge needed and also reinforce best practices: lawyers should always check the Rules of Professional Conduct rather than assuming they know the answers to ethical questions.
Knowledge of these key rules could also be assessed through portfolio examinations that require candidates to reflect on ethical issues they have confronted or observed in practice. An Oregon committee has proposed this type of assessment as part of a proposed Supervised Practice Portfolio Examination. See Rule 6.7 of the proposed rules for that licensing path.