Controlling Lawyer Behavior: The Sources and Uses of Protocols in Governing Law Practice
![handle is hein.journals/arz44 and id is 887 raw text is: CONTROLLING LAWYER BEHAVIOR:
THE SOURCES AND USES OF PROTOCOLS IN
GOVERNING LAW PRACTICE
Mona L. Hymel*
Over the last fifty years, increasingly specific ethical rules-or protocols'-
have been developed to regulate lawyer and law firm conduct. Many lawyers are now
expected to conform to protocols that prescribe behavior in a particular field of law
practice or legal arena.2 For example, tax lawyers must abide by Circular 230,3 a
detailed set of regulations issued by the United States Treasury Department to govern
all professionals-nonlawyers as well as lawyers-who practice before the Internal
Revenue Service (IRS). The number of lawyers subject to such protocols is
* Associate Professor of Law, The University of Arizona, James E. Rogers
College of Law. A CPA as well as a lawyer, Professor Hymel teaches courses on taxation, tax
policy, and trusts and estates. Her scholarship focuses on tax policy and on professional
responsibility issues that arise in tax practice. Professor Hymel served on the Arizona State Bar
Task Force on the Future of the Profession.
The Author wishes to thank Professor Ted Scheneyer for his valuable comments on earlier
drafts of this Article and for the tremendous amount of time he spent with her planning and
organizing this conference. The Author also wants to thank Associate Dean Kay Kavanagh for
her draft edits, advice, and support on this project. Many thanks go to Lisa Rosano for her
dedicated research assistance, and last, but not least, to The James E. Rogers College of Law
and Curtis A. Jennings, Esq. for their financial support of this research project.
1. The use of the term protocol to describe a highly detailed rule that governs
lawyers is attributable to Professor Ted Schneyer. See Ted Schneyer, From Self-Regulation to
Bar Corporatism: What the S&L Crisis Means for the Regulation of Lawyers, 35 S. TEx. L.
REV. 639, 649 (1994) [hereinafter Schneyer, Self-Regulation] (Kaye Scholer, for example, has
agreed to follow a number of detailed protocols in representing federally insured depository
institutions.); Ted Schneyer, Regulating Contingent Fee Contracts, 47 DEPAULL. RaV. 371,
406 (1998) [hereinafter Schneyer, Contingent Fee Contracts] (stating that legal ethics codes are
designed to provide general ethical standards for law practice, not strict protocols or
implementing regulations for lawyers specializing in a particular field.); Ted Schneyer, A Tale
of Four Systems: Reflections on How Law Influences the Ethical Infrastructure of Law
Firms, 39 S. Tax. L. REv. 245, 268 (1998) [hereinafter Schneyer, Ethical Infrastructure]
(Less well known are the detailed protocols the firm undertook to follow in its future banking
work.).
2. See David B. Wilkins, Making Context Count: Regulating Lawyers After Kaye,
Scholer, S. CAL. L. RaV. 1145, 1150-53 (1993) [hereinafter Wilkins, Context and Kaye,
Scholer] (discussing the growing number of context-specific ethical rules and enforcement
methods and discussing ethical distinctions between lawyers as counselors and lawyers as
litigators).
3. Circular 230, 31 C.F.R. pt. 10 (2002).](ViewImageLocal?handle=hein.journals/arz44&div=33&collection=&method=preview&ext=.png&size=3)
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Controlling Lawyer Behavior: The Sources and Uses of Protocols in Governing Law Practice
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