Taking Rules Seriously: The Rise of Lawyer Rules As Substantive Law and the Public Policy Exception in Contract Law

Abstract

Are the Rules of Professional Conduct “law?” In disciplinary proceedings, there is no question that they are, but their impact beyond the disciplinary realm remains a matter of controversy. As the Restatement of the Law Governing Lawyers aptly states: “The legal effect of officially adopted lawyer codes is fundamental and diverse.” Scholars have examined the non-disciplinary impact of the professional rules in a variety of areas, but this Article examines a largely unexplored question: the enforceability of certain agreements (e.g. lawyers splitting fees with non-lawyers) that are prohibited by the professional rules. If lawyers enter into these prohibited agreements, they are subject to discipline, but how, if at all, does the prohibition in the professional rules impact the enforceability of such agreements as a matter of substantive contract law?

Courts have increasingly relied on the rules as a source of substantive law and found that such agreements are unenforceable because they violate public policy, but a substantial minority of courts continues to reject the applicability of the professional rules to substantive contract disputes. Moreover, in accepting or rejecting the rules of professional conduct as a source of substantive law, courts almost uniformly engage in little discussion or analysis and instead simply decide in a conclusory manner that the professional rules either do or do not constitute public policy. This Article makes two primary contributions to scholarship. First, it examines the split among the courts considering the substantive impact of agreements made in violation of the professional rules. Second, it urges the courts to take the rules seriously as a source of law and provides the legal and public policy justifications for doing so, analysis that has been almost completely absent from the case law to date.