The Real and Imagined Beneficiaries of Legal Ethics

• Author: Adam Raviv
• Position: Senior Ethics Counsel for Presidential Personnel, the White House
• Pages: 321-373

ARTICLES

The Real and Imagined Beneficiaries of Legal Ethics

ADAM RAVIV*

ABSTRACT

This Article proposes a new and comprehensive framework for understanding

the professional standards that govern lawyers: that each rule of professional

conduct has one, and only one, primary beneficiary. Moreover, the beneficiary

of every rule falls into one of three categories: a lawyer’s client, third parties,

or the lawyer personally. Viewing the rules of professional conduct through a

beneficiary prism illuminates when a lawyer’s duty to a client can be—or must

be—subordinated to other interests. Understanding who is supposed to benefit

from a given rule is an essential tool in properly interpreting any professional

standard. It is also indispensable in determining whether that rule fulfills its

purpose in practice, or should be modified or eliminated. Applying a beneficiary

framework reveals that some key professional standards—the rules on conflicts

of interest, professional independence, and the unauthorized practice of law—

do not actually benefit their intended beneficiaries and should be rethought.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323

I. A LAWYER’S COMPETING CONSTITUENCIES . . . . . . . . . . . . . . 324

A. A LAWYER’S HIGHEST DUTY IS TO CLIENTS, EXCEPT

WHEN IT ISN’T . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324

B. THE UNCONFLICTED ETHICS OF OTHER

PROFESSIONALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 327

C. THE THREE BENEFICIARIES OF A LAWYER’S SERVICES . . 329

* Senior Ethics Counsel for Presidential Personnel, the White House. The views expressed in this Article

are those of the author alone and do not necessarily reflect the views of the White House or the United States.

The author thanks Mitt Regan for his close read and profound insights. © 2022, Adam Raviv.

321

II. WHO BENEFITS FROM THE RULES: A SELECTIVE RULE-BY-

RULE EXAMINATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 330

A. THE COMPETING BENEFICIARIES OF THE

CONFIDENTIALITY RULE . . . . . . . . . . . . . . . . . . . . . . . . . 330

B. THE COMPETING BENEFICIARIES OF THE SCOPE OF

REPRESENTATION RULE. . . . . . . . . . . . . . . . . . . . . . . . . . 334

C. THE COMPETING BENEFICIARIES OF THE RULE ON

TERMINATING REPRESENTATION . . . . . . . . . . . . . . . . . . 336

D. THE COMPETING BENEFICIARIES OF THE RULES ON

ADVOCACY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 338

E. DISCRETIONARY RULES: ALWAYS FOR THE BENEFIT OF

LAWYERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 342

III. DO RULES ALWAYS SERVE THEIR INTENDED BENEFICIARIES? 346

A. THE CONFLICT-OF-INTEREST RULES DO NOT BENEFIT

CLIENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 346

1. THE CONFLICT RULE AND ITS ALLEGED BENEFICIARIES . . . . . 347

2. THE ACTUAL BENEFICIARY OF THE CONFLICT RULE: STRATEGIC

LITIGANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348

B. THE “PROFESSIONAL INDEPENDENCE” RULE HURTS

CLIENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 353

1. THE PROFESSIONAL INDEPENDENCE RULE’S ALLEGED

BENEFICIARY: CLIENTS . . . . . . . . . . . . . . . . . . . . . . . . . . 354

2. THE PROFESSIONAL INDEPENDENCE RULE’S ACTUAL

BENEFICIARY: LAWYERS . . . . . . . . . . . . . . . . . . . . . . . . . 355

a. A Short History of the Professional Independence

Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 356

b. Critiques of the Professional Independence Rule . . . 361

C. THE INTERSTATE PROTECTIONISM OF THE

UNAUTHORIZED PRACTICE RULE. . . . . . . . . . . . . . . . . . . 363

1. THE UNAUTHORIZED PRACTICE RULE’S ALLEGED

BENEFICIARIES: CLIENTS AND THE GENERAL PUBLIC . . . . . . . 364

2. THE UNAUTHORIZED PRACTICE RULE’S ACTUAL BENEFICIARY:

LOCAL LAWYERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 368

CONCLUSION: WHY DOES IT MATTER?. . . . . . . . . . . . . . . . . . . . . . 372

322 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 35:321

INTRODUCTION

Who do lawyers work for? It is a simple question with an extremely complex

answer, in large part because lawyers wear numerous hats in our society, our jus-

tice system, our economy, and our government. Lawyers are client representa-

tives, advisers, and advocates. They are officers of the court. They are employees

of companies, law firms, and government agencies. They are prosecutors, defend-

ers, regulators, and legislators. They are judges, administrators, mediators, arbi-

trators, and law clerks. When professionals serve so many functions, it is not

surprising that the rules governing their behavior aim to further the interests of

multiple constituencies.

This Article argues that to understand and apply any professional standard, we

must first ask cui bono? Who benefits? Every standard that governs lawyers’ con-

duct can be differentiated based not only on the behavior it governs, but also on

whose interests the rule is intended to serve. When considering how to interpret a

rule or a subsection of a rule, or whether to change or eliminate it, an effective

way to zero in on the answer is to assess (1) who is supposed to benefit from the

rule, and (2) whether that benefit is actually realized.

The obvious answer to the question of whose interests a lawyer is supposed to

serve is the client. After all, lawyers are fiduciaries, and accordingly owe an

“utmost” duty of loyalty and a duty of care to their clients.

1

In many respects,

however, a lawyer’s highest duty is not to his or her clients. To be sure, a lawyer’s

client is often the paramount beneficiary of the lawyer’s ethical duties. But not

always. Many standards of professional responsibility place the interests of third

parties, or sometimes lawyers themselves, over the interests of clients. In various

circumstances, a lawyer is ethically required, or at minimum allowed, to act

against a client’s interest. Indeed, a lawyer is sometimes entirely within her rights

to favor her own interests above her client’s.

Although the question of who benefits from a rule is often discussed when

debating particular professional standards,

2

See, e.g., D.R. Fischel, Lawyers and Confidentiality, 65 U. CHI. L. REV. 1, 15–26 (1998) (questioning

whether clients benefit from confidentiality rules). See Comments to Arizona Petition to Restyle and Amend

Supreme Court Rule 31; Adopt New Rule 33.1; and Amend Rules 32, 41, 42 (Various ERs from 1.0 to 5.7),

46-51, 54-58, 60, and 75-76, AZCOURTS.GOV, https://www.azcourts.gov/Rules-Forum/aft/1118/afpg/4 [https://

perma.cc/Z26G-7VWM] (last visited Aug. 7, 2022) (citing various critiques of the restrictions on fee-sharing

and nonlawyer ownership of law practices).

no scholarship to date has explicitly

considered lawyers’ professional duties as a whole within a beneficiary frame-

work. This Article aims to provide the first comprehensive analysis of professio-

nal rules through this prism.

Part I of this Article considers the overall question of who benefits from a law-

yer’s ethical duties. It proposes a taxonomy of the rules of professional conduct—

focusing on the ABA Model Rules—that categorizes every rule, or subsection of a

1. See, e.g., Burdett v. Miller, 957 F.2d 1375, 1381 (7th Cir. 1992).

2.

2022] THE REAL AND IMAGINED BENEFICIARIES OF LEGAL ETHICS 323