Law Firm Discipline - In Through the Back Door

The California Rules of Professional Conduct, by their own terms, are “intended to regulate professional conduct of members of the State Bar through discipline.” (Cal. Rule Prof. Conduct 1-100(a)). Thus it has been ever since the very first set of Rules was approved by the California Supreme Court in 1928.
 

A lot has changed since 1928.

At the dawn of the State Bar era, most lawyers practiced as solo practitioners, or in small law firms.
 

The development of large law firms, not to mention the “mega-firms” consisting of thousands of lawyers, was not foreseen or provided for in the rules.
 

These organizations, with their large numbers of both attorneys and non-attorney staff, typically display diffused decision making that presents a challenge to a discipline process that presumes that a member is completely responsible for all aspects of a particular case, for all sins committed, whether by commission or omission.
 

The concept of professional discipline for law firms themselves has been around for several decades, but has never really caught fire. Some moves in that direction are reflected in the American Bar Association’s Model Rules of Professional Conduct, first promulgated in 1983.
 

Model Rule 5.1(a) requires individual partners to make "reasonable efforts" to ensure that their firm has measures in effect that give "reasonable assurance" that all lawyers in the firm conform to ethical rules.
 

Model Rule 5.3(a) imposes upon individual partners the obligation of making "reasonable efforts" to ensure that the firm has measures in place giving "reasonable assurance" that the conduct of non-lawyers affiliated with the firm is compatible with the partner's professional obligations.

 

These rules were adopted to encourage firms to create firm cultures and institute prophylactic policies and procedures -- an "ethical infrastructure" -- that would prevent misconduct before it occurred (O’Sullivan, "Professional Discipline for Law Firms?" A Response to Professor Schneyer’s Proposal, 16 Geo. J. Legal Ethics 1-90 [2002]).

Full Article and Source:
Law Firm Discipline:  In Through the Back Door