Abstract

For nearly two centuries, the vast majority of lawyers in private practice in the United States practiced alone or in firms with no more than two or three colleagues. Since 1950, however, and especially in the last quarter-century, practice in much larger firms has become so common that the large firm is to a considerable degree displacing the traditional practice settings. While this trend has been most pronounced in the United States, it is not uniquely American. Large firms have also become salient in international law practice as well as in domestic practice in Western Europe and much of the common law world.

Just as lawyers practice in various settings, so they can be regulated by various means. The lawyer's incentive to maintain a good reputation has long served as an informal control. The more formal controls that society has chiefly relied on to date also evolved when solo and small-firm practice were the norm. One such mechanism is the bar-administered disciplinary process, which bears a striking resemblance to the controls that medieval guilds exercised over local practitioners of a craft. In the disciplinary process, a lawyer is charged with misconduct; investigations and hearings determine whether the lawyer violated professional norms; and sanctions such as reprimand, suspension, or disbarment are imposed on violators. Other traditional mechanisms center on the exercise of judicial authority. Courts have long entertained civil claims against lawyers for malpractice. In those cases, clients seek compensation for losses caused by their lawyers' breach of fiduciary duties or prevailing standards of care. Courts have also exerted direct control over lawyers appearing before them on behalf of litigants, by disqualifying those who are embroiled in conflicts of interest, for example, or by sanctioning lawyers for procedural violations or contempt.

This Article considers how well these traditional controls, formal and informal, can be expected to regulate large-firrm practice, and whether practice in that form calls for a distinctive mix of regulatory techniques. We explore these issues by comparing the structure, clientele, services, and characteristic ethical problems of large firms with the corresponding features of solo and small-firm practice. The Article concludes that disciplinary controls, which in many countries remain under-developed, are especially unlikely to constrain lawyers in large firms. Civil liability and disqualification have greater promise, but internal monitoring and sanctioning by large firms motivated to protect their institutional interests and reputations must also play a major role.

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