Do JDs in nonlawyer corporate roles require new ethics model?
Lawyers who aren’t technically practicing law are pervasive in corporations, raising questions about the traditional model of ethics regulation, according to an upcoming law review article.
Licensed lawyers do hybrid legal work in a “robust, ambiguous boundary zone between law and business,” University of North Carolina law professor Dana Remus wrote in a draft article posted at SSRN. “In this broadened and blurred boundary zone,” she says, “legal training and licensure are valuable but professional ethical obligations are unclear.” The draft will be published in the Duke Law Journal, according to the Faculty Lounge.
The article offers some examples of the blurred boundaries. Corporate lawyers help plot business strategy. Lobbyists draft and advocate for legislation. Corporate compliance officers seek to avoid scandal. Lawyers also work as investment bankers, consultants, accountants, and corporate leaders.
As an example of the ethical problems, the article points to an example in which a company hires a compliance officer with a law license. “If compliance officers are located outside of the general counsel’s office,” the article says, “management derives the benefits of a lawyer’s expertise and reputational capital in the compliance role while ceding far less control than if the lawyer-compliance officer was subject to professional regulation.” A compliance officer who isn’t acting as a lawyer need not report corporate wrongdoing up the ladder, and need not advise employees who are interviewed to secure separate counsel, the article says.
The article suggests new and improved forms of professional regulation that include: heightened disclosure requirements, new rules governing transitions into quasi-legal roles, and new rules creating conduct floors for all licensed lawyers, practicing or not.
The article is titled, “Out of Practice: The Twenty-First Century Legal Profession.”