Law Firm Policies Regarding Insider Trading and Confidentiality
Special Task Force of the Subcommittee on Civil Litigation and SEC Enforcement Matters, 47(1): 235–69 (Nov. 1991)
This Report presents the results of a survey of existing law firm confidentiality and/or securities trading policies that was conducted by the Subcommittee on Civil Litigation and Enforcement Matters of the Federal Regulation of Securities committee of the Section of Business Law. The Report sets forth excerpts from such policies to assist firms that are deciding whether or not to adopt or revise codes on confidentiality and securities trading by providing examples of how various law firms have dealt with confidentiality and securities trading issues.
Law Firm Policies and Procedures in an Era of Increasing Responsibilities: Analysis of a Survey of Law Firms
Stephen R. Volk, Arthur Norman Field, and Joseph T. McLaughlin, 48(4): 1567–82 (Aug. 1993)
This Article analyzes and discusses the results of a survey of policies and procedures of twenty-six of the nation's larger law firms. The survey covers a host of areas ranging from investment policies for lawyers and nonlawyers to training and supervision of lawyers.
Limited Liability for Lawyers: General Partners Need Not Apply
Jennifer J. Johnson, 51(1): 85–145 (Nov. 1995)
Lawyers have traditionally practiced law in general partnerships with each partner personally liable for all firm obligations. Increasing liability risks have caused many lawyers to consider converting their firms to limited liability enterprises. This Article reviews the limited liability entities now available for the practice of law, including the professional corporation, the limited liability company, and the limited liability partnership. The Article describes the limitations on liability inherent in the various entities and suggests constraints mandated by court rules and ethical considerations. The Article next addresses selected operational and tax concerns facing lawyers practicing in limited liability enterprises as well as issues relating to a multistate practice. In conclusion, the Article suggests that limited liability entities should supersede general partnerships as preferred vehicles for the practice of law.
Business and Ethics Implications of Alternative Billing Practices: Report on Alternative Billing Arrangements
committee on Lawyer Business Ethics, 54(1): 175–207 (Nov. 1998)
The increasing use of alternative billing practices in place of hourly billing adds new dimensions to the attorney-client relationship. In addition to discussing a variety of alternative fee arrangements, this Report also explores issues of professional liability and ethical conduct that may arise in the unique context of these arrangements and proposes clarifications where applicable to the professional standards that address those concerns. The Report provides useful guidance to both law firms and their clients on maximizing the benefits and minimizing the consequences of alternative billing.
Law Partner Expulsion
Larry E. Ribstein, 55(2): 845–81 (Feb. 2000)
Expulsion is an important way for law firms to maintain their reputations, which in turn benefits their clients. Courts face difficulties in second-guessing expulsions and law firms have extra-legal incentives to act fairly and prudently in expelling partners. Consistent with these policy considerations, both the partnership statutes and the case law support a strong expulsion right. The statutory default rules permit expulsion without cause even without an expulsion provision in the agreement. Courts commonly enforce express contractual provisions on expulsion with or without cause. Finally, the policy considerations discussed in this article counsel caution in restricting expulsion under ethical rules and employment discrimination laws.
Daniel R. Fischel, 55(3): 951–74 (May 2000)
Multidisciplinary practice, the ability of lawyers engaged in the practice of law to combine and share profits with nonlawyers, is a reality in Europe and other countries but the subject of much debate in the American Bar Association, U.S. law schools, and law firms across the country. Currently, Rule 5.4 of the Model Rules of Professional Conduct, adopted by every state, prohibits lawyers from forming multidisciplinary practice firms. The author argues that opposition to multidisciplinary practice is misguided. He maintains that the legal profession should welcome multidisciplinary practice as creating new opportunities and challenges for its members.
Dan's World: A Free Enterprise Dream; An Ethics Nightmare
Lawrence J. Fox, 55(4): 1533–64 (Aug. 2000)
d>In the May 2000 issue of this Journal, Daniel R. Fischel, Dean of the University of Chicago School of Law, argued in favor of allowing lawyers to engage in the practice of law while combining and sharing profits with nonlawyers, commonly known as multidisciplinary practice. This issue—perhaps the most important facing the legal professional in the last century—continues to be a subject of much debate in the ABA, U.S. law schools, and law firms across the country. Currently, Rule 5.4 of the Model Rules Professional Conduct, adopted by every state, prohibits lawyers from forming multidisciplinary practice firms (MDPs). In this article responding to Dean Fischel's arguments, the author sets out his opposition to MDPs.
Extrajurisdictional Practice by Lawyers
William T. Barker, 56(4): 1501 (Aug. 2001)
Business and the economy are increasingly becoming global in structure, with little respect for national boundaries, let alone those of individual states. Yet licensure to practice law is almost exclusively the province of individual states. Litigators can avoid the most serious limits this regulatory scheme imposes by obtaining admission pro hac vice. Transactional lawyers have no similar mechanism to obtain authorization to practice in states where they are not admitted generally. Although efforts to reform current law in this area are ongoing, practicing lawyers must make decisions about what they can and cannot do under existing law. This Article focuses on that question, evaluating various lines of analysis applicable to particular types of activities. An understanding of this analysis should be useful to lawyers trying to shape their practices in ways that will best serve their clients, while avoiding improper activities. It may also be useful to reformers looking for ways to take modest steps in directions where larger steps do not seem feasible.
Framework for Control over Electronic Chattel PaperÂ-Compliance with UCC § 9–105
Working Group on Transferability of Electronic Financial Assets, a Joint Working Group of the committee on Cyberspace Law and the committee on the Uniform Commercial Code of the ABA Section of Business Law and The Open Group Security Forum, 61(2):721—744 (February 2006)
Civil Liability for Aiding and Abetting
Richard C. Mason, 61(3):1135—1182 (May 2006)
Civil liability for aiding and abetting provides a cause of action that has been asserted with increasing frequency in cases of commercial fraud, state securities actions, hostile takeovers, and, most recently, in cases of businesses alleged to be supportive of terrorist activities. The U.S. Supreme Court, in its 1994 decision in Central Bank of Denver, N.A. v. First Interstate Bank of Denver , ended decades of aiding and abetting liability in connection with federal securities actions. However, the doctrine since has flourished in suits arising from prominent commercial fraud cases, such as those concerning Enron Corporation and Parmalat, and even in federal securities cases some courts continue to impose relatively broad liability upon secondary actors. This article reviews Central Bank and its limitations, before turning to an analysis of the elements of civil liability for aiding and abetting fraud. The article then similarly identifies and analyzes the elements of liability for aiding and abetting breach of fiduciary duty, which predominantly concerns professionals, such as accountants and attorneys, that are alleged to have assisted wrongdoing by their principal. The analysis then examines aiding and abetting liability in the context of particular, frequently–occurring, factual matrices, including banking transactions, directors and officers, state securities actions, and terrorism. The article concludes by summarizing emerging principles evident from judicial decisions applying this very flexible and potent source of civil liability.
The Tensions, Stresses, and Professional Responsibilities of the Lawyer for the Corporation
E. Norman Veasey and Christine T. Di Guglielmo, 62(1): 1–36 (Nov. 2006)
The lawyer for the corporation—whether general counsel, subordinate in-house counsel, or outside counsel—faces tensions, stresses, and professional responsibilities that often differ from those of lawyers who represent individuals. The primary reality that must be faced is that this lawyer's client is—or should be—only the corporate entity.
This article is an attempt to highlight some of the issues that corporate counsel, directors, and managers should seek to recognize and understand. The various challenges faced by both in-house and outside lawyers representing corporations include the maintenance of professional independence, dealing with "up-the-ladder" reporting obligations, seeking to serve the client's best interests through persuasive counseling, the separation of legal and business advice, and dealing with internal investigations, to name a few.
Moreover, in the case of general counsel, special tensions arise because he or she has only one client (the general counsel's employer) and answers both to the CEO and to the board of directors. When these two "bosses" have potential differences or conflicts, the tensions placed on the general counsel may be palpable and difficult to manage consistently with the lawyer's ethical duties, advancement of corporate interests, and job security. Most general counsel are up to the task and do not take the difficulties of their challenges for granted. It is also important, in our view, that directors understand corporate counsel's roles and challenges, as well as the value that counsel brings to the board's responsibilities.
Working Paper: Best Practices for Debtors' Attorneys
Task Force on Attorney Discipline Best Practices Working Group, Ad Hoc committee on Bankruptcy Court Structure and the Insolvency Processes, ABA Section of Business Law, 64(1): 79-152 (November 2008)
From Regulation to Prosecution to Cooperation: Trends in Corporate White Collar Crime Enforcement and the Evolving Role of the White Collar Criminal Defense Attorney
Robert S. Bennett, Hilary Holt LoCicero, and Brooks M. Hanner; 68(2): 411-438 (February 2013)
This article traces the steady growth of criminal law into fields that had previously been addressed by civil statutes, particularly in relation to the concept of corporate criminal liability. The article also describes the means through which the federal government has encouraged cooperation between corporations that are being investigated and their investigators. This fundamental shift in how corporate misconduct is treated by the federal government has reframed the role of a criminal defense attorney who defends corporations and executives. Any lawyer facing such a task must be willing to incorporate new strategies into daily practice while also evaluating the theoretical considerations governing what it means to “bet the company.”
Report on the 2010 Survey of Law Firm Opinion Practices
Legal Opinions committee, ABA Business Law Section, 68(3): 785-820 (July 2013)
Why Law Firms Collapse
John Morley; 75(1): 1399-1440 (Winter 2019-2020)
Law firms don’t just go bankrupt—they collapse. Like Dewey & LeBoeuf, Heller Ehrman, and Bingham McCutchen, law firms often go from apparent health to liquidation in a matter of months or even days. Almost no large law firm has ever managed to reorganize its debts in bankruptcy and survive. This pattern is puzzling, because it has no parallel among ordinary businesses. Many businesses go through long periods of financial distress and many even file for bankruptcy. But almost none collapse with the extraordinary force and finality of law firms. Why?