The Silliest Rule of Professional Conduct: Model Rule 5.2(b)
The Professional Lawyer
Rule 5.2(b) provides that a subordinate attorney should not be disciplined for her conduct as long as she has complied with “a supervisory lawyer's reasonable resolution of an arguable question of professional duty.” This short essay contends that the rule confers few, if any, tangible benefits and has some potentially significant costs. In particular, the Rule applies in so few cases that it is difficult to construct a suitable hypothetical to which it would apply. And in cases where the Rule might apply, it is hard to see why a subordinate should escape liability for following unethical instructions. Finally, the Rule produces substantial costs by giving subordinate attorneys a justification to defer to authority figures in situations that warrant forceful dissent. With this lopsided cost/benefit analysis, Model Rule 5.2(b) deserves deletion.
19 Professional Lawyer 14 (2009)
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