The work of the Kutak Commission in developing the Model Rules of Professional Conduct is probably the most important work in legal ethics since the Alabama State Bar Association first codified its Canons of Ethics in 1887. In general, the Commission's product is excellent. It is progressive without being radical and conservative without being timid. However, as can be expected in any discussion draft, there are issues not wholly thought through and concepts not clearly expressed. In the spirit of improving the next draft, these mostly critical comments are offered.

Most discussions of lawyer-client decision making concern the difficult question of deciding when a lawyer must (or may) disregard his client's wishes because of conflict with some other significant interest outside the lawyer-client relationship. One of the ideological bases of the adversary system is a strong commitment to client control of decision making, which in theory must be balanced or reconciled with concerns about such control distorting the truthfinding functions of the legal system or causing harm to others. Little discussed until recently has been the fact that, despite this ideology, lawyers in many cases significantly control their clients' decisions and exert broad discretion over the means necessary to implement decisions.

In January 1980 the Commission on Evaluation of Professional Standards released a draft of proposed Model Rules of Professional Conduct. That draft is not a final draft, nor even a tentative one, but a Discussion Draft. By that title, and by the appearance of the draft in typescript the Commission has attempted to convey that the proposed Rules are a series of ideas meriting discussion, not fixed positions that we are prepared to aggressively defend. We know that the Discussion Draft requires editorial revision, that its substance needs additional refinement, that its policies deserve reconsideration. But after two and one-half years of dialogue, study, drafting, debate, and redrafting, we thought the Model Rules would gain much from the fresh perspective and critical appraisal that others could provide. To that end we solicited comments from lawyers and the public hoping to stimulate a public discussion of the role of lawyers in American society. That discussion will ultimately lead to a final draft of proposed Model Rules that reflects the best thinking of our profession as a whole.