Coercing Clients: Can Lawyer Gatekeeper Rules Work?

Recent federal regulations and amendments to the Model Rules of Professional Conduct—most of which have responded to lawyer involvement in corporate scandals—rest on the assumption that lawyers have a role to play in forcing clients to act legally, morally, or appropriately. Lawyers are distinctive, perhaps even unique among professionals, in that they are sometimes legally authorized to force clients into obeying the lawyers\u27 advice. This Article reviews the rules that empower lawyers in this way, with a focus on the corporate context. For the most part, the recent regulatory changes take a static view of the lawyer- client relationship. They assume that if lawyers are authorized or required to counteract proposed client misconduct, lawyers will do so and less client misconduct will result. This Article demonstrates that the reality is far more complex. Lawyers and clients have incentives to implement coercive rules in ways that serve reasons wholly unrelated to the rules\u27 purposes. Code drafters and those evaluating lawyers\u27 coercive authority, therefore, must confront the fact that attorney-client relationships are dynamic—that is, that a change in the power of one party in the relationship has ripple effects. This practical reality influences both the positions of lawyers in deciding whether to favor or oppose particular regulation and the likely effectiveness of coercive rules