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Ethical Exploration

David G. Ebner, Oil & Gas Agreements: The Exploration Phase

Papers on legal ethics generally tend to be much more about law than about ethics. The Model Rules of Professional Conduct1 set forth a well-organized series of specific rules, backed by the daunting admonition in Model Rule 8.4(a) that the violation--or even the attempted violation--of any such rule is, ipso facto, professional misconduct. It's little wonder that the Model Rules are as often referred to as disciplinary rules as ethical rules.

Indeed, it's not surprising that this should be so. We are, after all, lawyers, and we're trained to research, consider and apply statutory law as glossed by case law decisions. It is therefore quite easy (and, in view of the disciplinary penalties, quite appropriate) to fall into the pattern of resolving ethical questions by looking for the relevant rule, reviewing the available opinions issued by the various ethics committees, and then considering the views of scholarly commentators.

Moreover, this act-centered ethical system has a distinguished pedigree that traces to Aristotle, and a history of application that may arguably have reached its zenith in Commonwealth England. To Aristotle, political science focused on the pursuit of justice and agreed ethical norms, while Oliver Cromwell's Commonwealth minutely regulated, if not morality, then certainly the public appearance of morality. It was an easy transplantation of