A New Framework for Law Firm Discipline
![handle is hein.journals/geojlege16 and id is 349 raw text is: A New Framework for Law Firm Discipline
ELIZABETH CHAMBLISS & DAVID B. WILKINS*
INTRODUCTION
Professor Ted Schneyer was the first to call for professional discipline for
law firms in his 1991 article by the same title.' Schneyer called for the imposition
of an entity duty of supervision under Model Rule 5.1(a), which currently
imposes supervisory duties only on individual partners.2 He argued that the
possibility of sanctions against firms was necessary to encourage partners to
invest in structural controls, such as conflicts checking procedures, to promote
firm-wide compliance with professional regulation.3 He referred to such controls,
collectively, as the ethical infrastructure of the firm:
[A] law firm's organization, policies, and operating procedures constitute an
ethical infrastructure that cuts across particular lawyers and tasks. Large law
firms are typically complex organizations. Consequently, their infrastructures
may have at least as much to do with causing and avoiding unjustified harm as
do the individual values and practice skills of their lawyers .4
Schneyer based his proposal for law firm discipline on an analogy to corporate
criminal liability, citing the increasing use of collective criminal sanctions in the
regulation of business corporations.5 Just as some corporate wrongdoing is
inherently structural, Schneyer argued that bureaucratic failings and collec-
tive decisions.., play a significant causal role in producing unethical conduct in
law firms.6 Moreover, he argued, some types of collective sanctions, such as
public censure or shaming, may be more effective against law firms than business
corporations, because law firms belong to a reasonably well-defined ethical
* Elizabeth Chambliss is the Research Director of the Program on the Legal Profession at Harvard Law
School. David B. Wilkins is the Kirkland & Ellis Professor of Law at Harvard Law School and the Faculty
Director of the Program on the Legal Profession. We are grateful for the excellent research assistance provided
by Justin Osofsky.
I. Ted Schneyer, Professional Discipline for Law Firms?, 77 CORNELL L. REV. 1 (1991) [hereinafter
Schneyer, Professional Discipline].
2. MODEL RULES OF PROFESSIONAL CONDUCT Rule 5.1(a) (1983) [hereinafter MODEL RULES) (stating that a
partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving
reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct).
3. Schneyer, Professional Discipline, supra note 1, at 17-20, 23 (calling for entity liability).
4. Id. at 10.
5. Id. at 23.
6. Id. at 25.](ViewImageLocal?handle=hein.journals/geojlege16&div=18&collection=&method=preview&ext=.png&size=3)
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A New Framework for Law Firm Discipline
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