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Comments of Robert A. Creamer Concerning Draft Model Rules 5.1 and 5.3 - Center for Professional Responsibility

American Bar Association
Commission on Evaluation of the Rules of Professional Conduct

Comments of Robert A. Creamer
Concerning Draft Model Rules 5.1 and 5.3

July 6, 2000

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In short, whoever you may be,

To this conclusion you'll agree,

When every one is sombodee,

Then no one's anybody!

Don Alhambra, the Grand Inquisitor

The Gondoliers, Act II

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My name is Robert Creamer. My employer and some other affiliations are listed at the end of this statement. I have identified these affiliations only to give you my background. I appear here today as an individual and not as a representative of any other person or group. The views that I will express may or may not reflect those of others.

For purposes of today's discussion, the relevant part of my background is that from 1967 to 1993, I was affiliated with a Chicago-based law firm that grew from 100 to 350 lawyers in about ten years. When I left, we had offices in New York City, Washington D.C., Houston, Los Angeles, San Francisco, and Peoria.

The purpose of my appearance here today is to speak against the Commission's expressed intention to amend Model Rules 5.1 and 5.3 to extend the duties imposed by those rules to law firms as well as individual lawyers.

The passage from Gilbert & Sullivan quoted above summarizes the fatal flaw of the concept of law firm discipline. (In The Gondoliers, two well-meaning would-be kings appointed every person in the realm to positions of prominence, so that "Dukes were three a penny" for example.) The collective responsibility imposed by law firm discipline will have the same unintended, but unfortunate, result. When everyone is responsible, no one is responsible.

Although the arguments in favor of law firm discipline appear compelling, it is likely to have an opposite effect from that intended by its proponents. In my experience, the most effective means of controlling the behavior of ethically challenged lawyers is the credible threat of the loss or suspension of their license to practice law. Any shift from the individual responsibility of lawyers to the collective responsibility of the firm will diminish the effectiveness of that deterrent. In fact, for the target population of this intended rule, the change in emphasis is likely to be welcomed. It will be viewed by many lawyers as shifting the risk of unethical behavior from a threat to their livelihood to a cost of doing business. For that reason, it is likely to lead to more, rather than less, unethical behavior by lawyers and law firms.

Although the situations routinely recounted by proponents of law firm discipline do involve despicable behavior, in every such instance individual lawyers either supervised or participated in the unethical conduct. Those individual lawyers could surely be disciplined under the existing rules. In that regard, the Commission will recall that the representatives of disciplinary counsel advised the Commission that they neither needed nor wanted law firm discipline. The Commission should heed the advice of those charged with the administration of the disciplinary system and delete the proposed revision regarding law firm discipline.

I have appreciated the opportunity to express my views here today. I would be happy to answer any questions the Commission may have.

* * *

My employer is Attorneys' Liability Assurance Society, Inc., A Risk Retention Group, a mutual insurance organization that provides professional liability insurance coverage for large law firms. I am a member of the Association of Professional Responsibility Lawyers, the Maritime Law Association, The American Law Institute, the American Bar Association, the Chicago Bar Association, and the Illinois State Bar Association. I have served on the Standing Committee on Professional Conduct of the Illinois State Bar Association from 1983 to date. I was chair of that committee in 1989 and 1998. I also serve as chair of the Board of Ethics of the City of Evanston, Illinois.