Abstract

American lawyers continue to be regulated under a regime that took shape when solo practice was the norm. Overseen by the state supreme courts, that regime enforces a comprehensive code of legal ethics in a disciplinary process that is highly reactive, triggered only after someone files a complaint charging a lawyer with misconduct. This Article questions the adequacy of the regime to promote ethical compliance in today's law firms and other lawyer workplaces, which require extensive management. In these settings, compliance depends not only on the individual lawyer's practice skills and values, but also on the quality of what the Article terms the "ethical infrastructure" of the workplace. The ABA's Model Rules of Professional Conduct recognized this in 1983 by requiring law firm "partners" to make reasonable efforts to ensure (1) that their "firm has in effect measures giving reasonable assurance that [firm lawyers] will conform to the rules" and (2) that the conduct of the firm's nonlawyers will be "compatible with" the lawyers' duties. Many states have adopted these rules, but they are rarely enforced in the disciplinary process. This Article argues that three features of the traditional regime make it hard to enforce these broad duties of management sufficiently to encourage the implementation of sound ethical infrastructures. It then considers how to make enforcement more effective and concludes that the most promising reform, suggested by recent regulatory reforms in Australia, would be more proactive, management-based regulation.

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