Benjamin P. Cooper

Taking Rules Seriously: The Rise of Lawyer Rules As Substantive Law and the Public Policy Exception in Contract Law

Are the Rules of Professional Conduct “law?” In disciplinary proceedings, there is no question that they are, but their impact beyond the disciplinary realm remains a matter of controversy. As the Restatement of the Law Governing Lawyers aptly states: “The legal effect of officially adopted lawyer codes is fundamental and diverse.” Scholars have examined the non-disciplinary impact of the professional rules in a variety of areas, but this Article examines a largely unexplored question: the enforceability of certain agreements (e.g. lawyers splitting fees with non-lawyers) that are prohibited by the professional rules. If lawyers enter into these prohibited agreements, they are subject to discipline, but how, if at all, does the prohibition in the professional rules impact the enforceability of such agreements as a matter of substantive contract law? Courts have increasingly relied on the rules as a source of substantive law and found that such agreements are unenforceable because they violate public policy, but a substantial minority of courts continues to reject the applicability of the professional rules to substantive contract disputes. Moreover, in accepting or rejecting the rules of professional conduct as a source of substantive law, courts almost uniformly engage in little discussion or analysis and instead simply decide in a conclusory manner that the professional rules either do or do not constitute public policy. This Article serves two primary purposes. First, it illustrates the split among the courts considering the substantive impact of agreements made in violation of the professional rules. Second, in urging more uniform and widespread use of the rules in substantive contract disputes, it provides the theoretical and public policy justifications that have been almost completely absent from the case law. August 2012 Lawyer Rules as Substantive Law 3 Introduction 2 I. The Public Policy Exception 10 II. Survey of Law 13 A. Pennsylvania: A Case Study 13 B. Area by area survey Error! Bookmark not defined. 1. Rule 1.5(e): Division of fees between lawyers who are not in the same firm 18 2. Rule 5.4(a): Fee splitting between lawyer and non-lawyer 23 3. Rule 1.8(a): Business transactions with clients 26 4. Rule 1.8(c): Soliciting gifts from clients 28 5. Rule 1.8(g): Aggregate settlements 29 6. Rule 1.8(h): Prospective Settlement of Malpractice Claims ........30 7. Rule 1.8(i): Proprietary interest in a client’s cause of action: 31 III. The Courts Should Make Greater Use of the Rules 32 A. The professional rules’ proper doctrinal role 32 B. Theoretical and public policy justifications for greater use of the rules 34 1. The “legalization” of the professional rules 34 2. Courts’ use of other professionals’ codes and customs 37 3. Courts’ use of statutes 37 4. Lawyers write the rules 39 5. Underenforcement by the Bar 41 6. The professional rules derive from common law duties 42 7. The language in the Preamble 43 IV. Conclusion 45 4 Lawyer Rules as Substantive Law August 2012

Truth in Sentencing: The Prospective and Retroactive Application of Simmons v. South Carolina

This comment argues that the Supreme Courts decision in Simmons v. South Carolina, 512 U.S. 154 (1994) should be applied retroactively. The comment was cited by Justice Stevens in his dissent in O’Dell v. Netherland, 521 U.S. 151 (1997).

The Curious Case of Advance Conflicts Waivers

Are broad advance conflicts waivers enforceable? This short article, which appears as the Correspondents Report from the United States in the journal Legal Ethics, describes two recent cases in which U.S. courts upheld broad advance waivers of conflict of interests made by sophisticated clients.

USA: Saving Face—Ethical Considerations for American Judges Using Facebook

Cautionary tales of judges misusing social media abound. In North Carolina, a judge was reprimanded for using social media to conduct independent research on a party appearing before him and for engaging in ex parte communications with one of the lawyers. In Alabama, a judge was reprimanded for making comments on his Facebook page about contempt proceedings against a lawyer appearing before him. Judges, like all Americans, are making increasing use of social media, but they remain concerned about whether they can use such sites without violating the ethical codes that govern their conduct. Recognising the need for guidance on these issues, several state ethics committees have authored ethics opinions addressing judges’ use of social media, and last year the American Bar Association (ABA) weighed in. All of these opinions endorse judicial use of social media. As the ABA opinion explains, judges should not become ‘isolated’ from the community in which they live, and social media ‘has become an everyday part of worldwide culture’. Thus, the ABA Opinion concludes that ‘judicious use of [social media] can benefit judges in both their personal and professional lives’ and can also keep them from being ‘thought of as isolated or out of touch’. For the most part, these opinions recognise that judges can navigate social media ethically by simply applying well-established principles to the unfamiliar context of social media. Following this rule of thumb, these opinions provide a variety of valuable guidance to judges to help them use social media without running afoul of their applicable judicial code of ethics. Where these opinions fail to provide clear guidance to judges, however, is on

Predictive Coding and the Changing Legal Marketplace

This short article, which will appear as the Correspondents Report from the United States in the journal Legal Ethics, provides a brief primer on predictive coding, discusses the recent judicial decisions approving its use, and then describes what the rise of predictive coding means for lawyers, judges, and law schools.