The Decline in Lawyer Independence: Lawyer Equity Investments in Clients
John S. Dzienkowski
University of Texas - School of Law, The Center for Global Energy, International Arbitration, and Environmental Law
Robert J. Peroni
University of Texas at Austin - School of Law
GWU Law School, Public Law Research Paper No. 56; and U of Texas Law, Public Law Research Paper No. 45
In the modern legal profession, lawyers have entered into business transactions with their clients. These dealings, however, have been highly regulated through the ethics codes and common law. The ethics codes have imposed procedural and substantive requirements for such transactions. The state courts have similarly applied rules of agency law and fiduciary principles to ensure that lawyers are properly dealing with clients in such transactions. In the last decade, law firms have increasingly taken equity interests in client ventures. This practice has been commonplace in the Silicon Valley and has spread to law firms in other regions of the country. Various state and local bar associations as well as the ABA have recently liberalized the application of the traditional business transaction rules in the client equity context.
The authors offer a detailed examination of the law firm practices of taking equity in client ventures based upon two years of research and interviews with lawyers and clients throughout the country. They examine these practices in light of the ethics rules, ethics opinions, and common law and offer a critique of the current positions advocated by the organized bar. They further detail the ethics and securities concerns that arise when a law firm accepts equity interests in a client and continues to represent that client in general legal affairs. This article argues that the Bar's current position dramatically underestimates the actual and potential conflicts that arise when lawyers invest in client ventures. Such practices expose law firms to significant ethical, malpractice, and securities liability. Lawyer-client equity transactions have the potential to undermine the independence of the lawyers' advice to clients and thereby harm the attorney-client relationship.
Number of Pages in PDF File: 146
Keywords: lawyer equity investments, venture capital, silicon valley law firms, Model Rule 1.8(a)
JEL Classification: K10, K22, K49Accepted Paper Series
Date posted: January 14, 2003
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