Self Regulation, Socialization, and the Role of Model Rule 5.1
![handle is hein.journals/geojlege12 and id is 129 raw text is: Self Regulation, Socialization, and the Role
of Model Rule 5.1
THOMAS A. KUCZAJDA*
INTRODUCTION
Ethical parameters for lawyers are designed to shape conduct in an effort to
ensure client confidences, maintain the quality of the profession, and combat the
countervailing negative view of legal practice. However, as explained by Ferdin-
and Schoeman, causal theories do more than tell us what we should do if we
desire to bring about certain results; they counsel us to strive for a certain kind of
environment as well.' Therefore, if the rules as a whole are unable to create an
ethical climate, the efficacy of any individual regulation is greatly diminished.
Moreover, as incentives for reporting violations of such rules decrease, incentives
to step around the rules rise, unabated, and the legitimacy of the legal profession
as a self-regulating entity falters. For these reasons, the duty to enforce ethical
standards within law firms, as pronounced in Model Rule 5.1,2 should be seen as
the foundation on which to construct an ethical environment which tempers
zealous advocacy with professionalism.
Unfortunately, the foundational importance of intra-firm policing provisions
has been ignored by the judiciary, as evidenced by the recent Texas Supreme
Court decision in Bohatch v. Butler & Binion.3 Judicial acceptance of retaliatory
firing of attorneys who report co-partner violations has eliminated professional
obligations from the definition of fiduciary. A vague duty to remain vigilant of
ethical transgressions is paired with a legitimate fear of extreme financial and
social repercussions at the hands of current employers. The result is that
individual partners have little incentive to question seriously their coworkers.
Law firms, which wield tremendous power in socializing a lawyer's individual
action, are allowed to do so in ways which often serve revenue at the expense of
* J.D., Georgetown University Law Center, expected 1999; B.A., University of Michigan, 1995. The author
thanks Collete Bohatch and Professor David Luban for their time and comments. The author also thanks his
friends, family, and Janice White for their support.
1. FERDINAND SCHOEMAN, RESPONSIBILITY, CHARACTER, AND THE EMOTIONS 313 (1987).
2. MODEL RULES OF PROFESSIONAL CONDUCT Rule 5.1 (1997) [hereinafter MODEL RULES]. Throughout this
comment, reference to the MODEL RULES reflects the wide-spread adoption of those rules in most states.
Therefore, unless otherwise noted, such reference speaks to the relevant state's equivalent rule. Differences
between the ABA model and adopted versions will be noted where appropriate.
3. Bohatch v. Butler & Binion, No. 95-0934, 1998 WL 19482 (Tex. Jan. 22, 1998) [hereinafter Bohatch Ill.](ViewImageLocal?handle=hein.journals/geojlege12&div=13&collection=&method=preview&ext=.png&size=3)
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Self Regulation, Socialization, and the Role of Model Rule 5.1
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