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Model Rule of Professional Conduct 5.1(a) requires individual partners to make "reasonable efforts" to ensure that their firm has measures in effect that give "reasonable assurance" that all lawyers in the firm conform to ethical rules. Similarly, Model Rule 5.3(a) imposes upon individual partners the obligation of making "reasonable efforts" to ensure that the firm has measures in place giving "reasonable assurance" that the conduct of non-lawyers affiliated with the firm is compatible with the partner's professional obligations. These rules were adopted to encourage firms to create firm cultures and institute prophylactic policies and procedures--an "ethical infrastructure"--that would prevent misconduct before it occurred. Although these Model Rules have been widely adopted, they are, as far as enforcement goes, asserted to be a disciplinary "dead letter." A little over ten years ago, Professor Ted Schneyer argued:

Given the evidentiary problems of pinning professional misconduct on one or more members of a lawyering team, the reluctance to scapegoat some lawyers for sins potentially shared by others in their firm, and especially the importance of a law firm's ethical infrastructure and the diffuse responsibility for creating and maintaining that infrastructure, a disciplinary regime that targets only individual lawyers in an era of large law firms is no longer sufficient. Sanctions against firms are needed as well.

Although we are accustomed to entity liability in the civil and criminal law arenas, Professor Schneyer's suggestion that firms be sanctioned--with monetary fines yet--for the disciplinary transgressions of their agents was novel and provocative. If this suggestion was not sufficient to grab the attention of the bar, Professor Schneyer's proposed standard of liability certainly was. He argued that firm liability should be tested under the respondeat superior standard that is employed against corporate defendants in most civil and criminal cases. Under that standard, firms would be liable for the wrongdoing of their agents who act within the scope of their employment and with the intention to benefit, at least in part, the firm, even when the agent is acting contrary to express firm policy. Thus, not only would an enforceable obligation to create an ethical infrastructure extend to firms as well as to individual partners, but the Model Rules' "reasonable efforts" standard would be eliminated. Firms, then, could be held vicariously liable for the wrongdoing of their agents even if they had in effect measures that provided "reasonable" (though obviously not perfect) assurance of ethical compliance.

Publication Citation

16 Geo. J. Legal Ethics 1-90 (2002)