The Paragraph 20 Paradox: An Evaluation of the Enforcement of Ethical Rules as Substantive Law
Paragraph 20 in the Scope section of the American Bar Association (ABA) Model Rules of Professional Conduct (Model Rules)-which most states have adopted-provides that a violation of the Model Rules "should not give rise to a cause of action against a lawyer[,] nor should it create any presumption in such a case that a legal duty has been breached." At the same time, Paragraph 20 provides that the Model Rules can be used as "evidence" of breach of a lawyer's standard of conduct. Thus, the Model Rules attempt to make it clear that ethical violations are distinct from substantive law while at the same time acknowledging that they do play some role in substantive disputes. As the cases mentioned indicate, courts struggle with how to handle the interaction of ethical prohibitions and substantive law. This Article addresses this "Paragraph 20 paradox" faced by courts (and lawyers).
8 St. Mary’s J. on Legal Malpractice & Ethics 252 (2018).