Why Not Try the Carrot? A Modest Proposal for Granting Immunity to Lawyers Who Disclose Client Financial Misconduct

Abstract:     
This essay proposes that states and the federal government grant immunity from civil, criminal, and administrative liability to lawyers who disclose client financial misconduct. This proposal is needed because recent amendments to the ABA Model Rules of Professional Conduct fail to address the costs to lawyers of the disclosure the amended rules permit. The changes are therefore more cosmetic than substantive.

Lawyers facilitate client financial misconduct by cooperating with the client and with other professionals in either performing unlawful acts or silently tolerating them. Cooperation among professionals succeeds because each party knows that every other party maximizes its gains by remaining silent. My proposal seeks to destroy such cooperation by creating a prisoners' dilemma, in which participants believe that disclosure of unlawful activity is more profitable than silence. This essay presents reasons to support these propositions, and it considers objections to my proposal.

Working Paper Series