Understanding the ABA's 'Should' rules and why advisory and ethical considerations matter for lawyers

Understanding the “Should” rules from the ABA: guiding light without the stick

If you’ve ever skimmed through the American Bar Association’s ethics material, you’ve likely run into a mix of terms that sound official and a little stern. The one that sticks in people’s heads most is the notion of “mandatory” rules—the things that, if you break them, you’ll face penalties. But there’s another category that often gets overlooked: the Shoulds. Let me explain what these are and why they matter, even if they don’t slam you with obvious consequences the moment you slip up.

What the “Should” category is all about

Here’s the thing: the ABA uses different layers of guidance to shape how lawyers should think and behave in the real world. The Should category is all about advisory and ethical considerations. They’re aspirational in nature. They sketch out best practices for professional conduct, yes, but they don’t impose the same punitive bite as mandatory rules.

Think of the Shoulds as the professional equivalent of a weather forecast: they tell you what weather experts would recommend you do to stay dry and safe, not what you must do to avoid getting drenched by a thunderstorm. They guide the decision-making process, encourage sound judgment, and emphasize integrity, dignity, and respect for the legal system. They’re the language of professional aspiration—an invitation to do the right thing even when there isn’t a concrete penalty for getting it wrong.

How Shoulds differ from the hard rules

• Mandatory laws: These are the teeth in the system. You violate them, you’re at risk of sanctions, discipline, or penalties. Think of conflicts that are clearly prohibited or confidentiality breaches that trigger clear disciplinary action. The consequences are explicit and enforceable.

• Shoulds: No automatic penalties here. Disregard a Should, and you might face professional criticism, reputational risk, or ethical scrutiny down the line. The results aren’t automatic jail time; they’re about the quality and integrity of your professional conduct. In many cases, following a Should reduces exposure to later problems or claims of negligence.

• Performance benchmarks and regulatory requirements: These tend to focus on outcomes and measurable standards—things you can be tested on or audited against. They’re important, yes, but they sit a step away from the moral compass that Shoulds tug at. It’s less about ticking a box and more about aligning with a high standard of practice.

• Advisory opinions and ethical considerations: Here’s the heart of the Shoulds. These aren’t laws; they’re thoughtful recommendations that help you navigate murkier situations. They reflect consensus about what’s morally sound, prudent, or fair in the practice of law.

Why should you care about Shoulds in the MPRE landscape

For students and future lawyers, grasping the Should category helps you think like an ethical professional, not just a rule follower. The MPRE tests your ability to reason through ethical dilemmas, not just memorize which actions are forbidden. The Shoulds train you to ask the right questions before you act: Am I avoiding a conflict of interest? Am I maintaining client confidentiality while being truthful? Am I treating opposing counsel and the court with respect?

The value here isn’t just exam readiness. It’s everyday practice. When you internalize a Should, you’re building a habit: stop, consider the broader consequences, weigh diligence against convenience, and choose the option that upholds the profession’s integrity. That habit pays off in clients’ trust, colleagues’ respect, and a smoother path through the inevitable tricky moments every attorney faces.

What a Should looks like in real life

Advisory opinions and ethical considerations are lived in the gray areas—where the rules don’t shout, but the good sense does. Here are a couple of tangible patterns you’ll often encounter:

• Conflicts of interest: A Should may advise proceeding with caution, seeking informed consent, or stepping back when a potential conflict isn’t clearly resolvable. It’s not a strict prohibition, but a nudge toward transparency and prudence.

• Confidentiality beyond the letter: There’s a Should that suggests preserving client confidences while also considering broader duties to the justice system or to the truth-seeking process. It’s a reminder that confidentiality isn’t a shield to shield bad behavior; it’s part of the trust that lets clients be open about their situations.

• Candor to the tribunal and fair dealing: A Should might encourage honesty, even when a situation is uncomfortable or suggests bending the truth in small ways. It’s about maintaining the profession’s credibility, which benefits everyone who relies on the system.

• Professionalism and respect: Shoulds often underscore the importance of civility, collegiality, and respect for the courts, opposing counsel, and clients. This isn’t just nice vibes; it sustains orderly, ethical advocacy.

The gray area, explained simply

If you’ve ever been torn between two good options, you’ve felt the tug of the Should. It’s the voice that says: “Here’s the principled choice, even if the other path seems easier in the moment.” The Should isn’t an ironclad rule—but it’s a navigator that helps you avoid the kind of regrets that come from cutting corners or ignoring broader professional norms.

A few practical takeaways

• Use Shoulds as a decision framework: Whenever you face a tricky choice, pause. Ask yourself what would align with the aspirational standard of professional conduct. If you’re unsure, seek guidance from ethics opinions or discuss with a trusted mentor.

• Don’t mistakeShoulds for unimportant guidelines: They’re influential for how you’re perceived and how you’ll handle future disputes or scrutiny. They reduce the chance of later missteps.

• Balance practicality with integrity: Sometimes the practical route seems expedient. The Should encourages you to consider the long view—how your actions affect your client, the court, and your own professional reputation.

Common misconceptions and clarifications

• misconception 1: Should rules are optional. Not exactly. They’re guidelines that aren’t enforceable as penalties, but ignoring them can still bring ethical, reputational, or disciplinary consequences in the long run.

• misconception 2: Shoulds are vague, not precise. In reality, they’re grounded in thoughtful analysis, ethics opinions, and professional culture. They’re not a license to do anything; they’re a compass for thoughtful concern and prudent action.

• misconception 3: Shoulds only matter in dramatic crises. They matter in everyday decisions too—how you handle confidential information, how you communicate with clients, and how you interact with the court and the public.

Connecting the dots: ethics, character, and professional trust

It’s tempting to view the Should as “soft,” but that would miss a big point. The moral fiber of the profession rests not just on what’s forbidden but on what’s right. If you want to earn the trust of clients and peers, you lean into these aspirational guidelines. You show up with integrity when no one is watching, you choose transparency when a shortcut is possible, and you hold yourself to a standard that, frankly, makes the system stronger for everyone.

A handy mental model

Think of the Should as a lighthouse in foggy seas. When the shoreline is unclear and winds are tricky, the Should points you toward safe harbor—toward honesty, fairness, and respect. It doesn’t slam the door on every risky scenario; it invites you to navigate with care, to ask questions, and to seek out the best, most principled path.

Let’s tie it back to the broader purpose

The MPRE and the ABA’s rules exist to preserve the public’s confidence in the legal profession. The Should category contributes to that mission by shaping professionals who choose ethical options not just because they’re required, but because they’re right. In the long run, this is what sustains the legitimacy and dignity of the profession. It’s not a flashy concept, but it’s the soft power that keeps the system honest and the clients protected.

A final thought, with just a touch of everyday realism

You’ll encounter situations where every option looks decent and none look perfect. That’s where the Should stuff shines. It nudges you toward the choice that feels, in your gut and in your reason, like the right thing for the long haul. And yes, it’s okay to feel the tension between easy and right. That tension is what makes ethical leadership possible.

If you’re exploring these ideas in depth, you’ll find that the Shoulds aren’t about chasing perfection. They’re about pursuing a higher standard—one that you carry into every meeting, every memo, and every moment of decision. And that, more than anything, is what helps you build a reputation for integrity that can weather the roughest storms.