The Parallel Law of Lawyering in Civil Litigation
Fordham Law Review
Civil litigators are increasingly governed by a body of law that is similar, but not identical, to existing rules of professional conduct. For example, Rule 26(b)(5)(B) of the Federal Rules of Civil Procedure and Rule 4.4(b) of the Model Rules of Professional Conduct both address a lawyer’s obligations upon receiving an inadvertently disclosed privileged document. Model Rule 4.4(b), however, only requires the receiving lawyer to notify the sender of the mistake, whereas the civil procedure rule imposes additional obligations, including a duty to return the inadvertently disclosed document. Scholars, as well as the Model Rules themselves, recognize that parallel law of the sort contained in Federal Rule 26(b)(5)(B) now increasingly governs lawyers’ conduct. This Article contends that the parallel law in the civil litigation context does not merely supplement or complement rules of professional conduct; it is increasingly in tension with the ethics rules, causing several problems. First, this tension has created confusion for lawyers who seek to conform their conduct to the relevant standard. For example, because courts do not always disqualify lawyers who have a conflict of interest under the relevant ethics rules or, conversely, do disqualify lawyers who have not violated the applicable conflicts rules, lawyers have trouble determining how to proceed in the face of a possible conflict of interest. Second, because of this type of confusion, the bar tends not to discipline lawyers for violations of the rules of professional conduct when the parallel law differs in content or application. Finally, these developments threaten to diminish the authority of the Model Rules of Professional Conduct by transforming disciplinary rules into toothless provisions that lack enforceable law-like status. This Article concludes that to address these problems, the Model Rules must have more modest ambitions with regard to the regulation of lawyers and should cede responsibility for regulating lawyer conduct when a Model Rule does not serve as a basis for discipline and is in tension with parallel authorities.
79 FORDHAM L. REV. 1965 (2011)