Long Live Bohatch: Why a Law Firm Partner Can Be Expelled for Following the Rules of Professional Conduct

34 Miss. C. L. Rev. (Forthcoming)

57 Pages Posted: 31 Jan 2015 Last revised: 20 Apr 2015

See all articles by David Grenardo

David Grenardo

University of St. Thomas - School of Law (Minnesota)

Date Written: April 19, 2015

Abstract

Every semester in law schools across the country, law students and professors struggle with the situation presented in the Texas Supreme Court case of Bohatch v. Butler & Binion. Colette Bohatch suspected another Butler & Binion partner of overbilling. Pursuant to Bohatch’s ethical duties, she reported within the firm the suspected overbilling attorney. The law firm then expelled Bohatch from the partnership. The Supreme Court of Texas held that Bohatch needed to follow her ethical duty to report the overbilling, but the law firm could properly expel her for doing so because, among other things, the trust and confidence needed for a partnership trumped any purported policy protecting a law firm whistleblower. And once she reported her fellow partner, Bohatch lost the trust of the partnership.

Naturally, this Catch-22 situation that a partner may find herself in troubles many: the partner can either follow the rules of professional conduct by reporting the misconduct of a fellow partner, but lose her job in the process without being protected or able to sue for damages, or the partner can simply stay quiet about a fellow partner’s misconduct to avoid being terminated, while violating her ethical duty to report fellow attorneys who are causing a client harm.

This Article presents a new framework to analyze the Bohatch scenario. The point at which the analysis should begin is when the associate makes the decision to become a partner in a law firm. The decision culminates in the signing of the partnership agreement. This paradigm shift is based on several basic concepts found in law and society. These concepts, individually and collectively, represent the notion that attorneys must be extremely careful and diligent when making the choice of whether to become a partner with other attorneys because an attorney may suffer the negative consequences of choosing partners whose misconduct can affect the attorney. Finally, the decision by a partner to join a firm by signing an at-will partnership agreement that provides for expulsion without cause further places the risk on the new partner should the other partners decide they no longer trust that new partner. Once the point of analysis changes in a Bohatch scenario, the onus then moves to the associate’s decision and decision-making process to become a partner at a certain law firm.

The analysis in a Bohatch scenario should begin at the point when an attorney decides to become a partner with other attorneys, and the analysis should end when an attorney turns in a fellow partner to the state bar, thus potentially removing the trust required for the partnership to excel. Part of this Article focuses on the topic of trust, which serves as the backbone of the correctly decided Bohatch case. Law firm partnerships are social constructs that require the key element in any social relationship – trust.

This Article concludes that the court correctly decided Bohatch, and any court that subsequently decides this same issue should reach the same conclusion that the Bohatch court did. Attorneys must make every effort to choose their partners wisely and endure the positive and negative consequences of that choice. This Article provides some practical advice on how to make that choice. Trust remains an important element in a law firm partnership’s success, and if a partner destroys that trust by reporting a fellow partner, then that reporting partner may properly be terminated from the partnership without any recourse or protection from the courts.

Keywords: partnership, law firm partner, professional responsibility, ethics, Bohatch, termination of a partner, legal ethics, duties of partners, fiduciary duties between partners

Suggested Citation

Grenardo, David, Long Live Bohatch: Why a Law Firm Partner Can Be Expelled for Following the Rules of Professional Conduct (April 19, 2015). 34 Miss. C. L. Rev. (Forthcoming) , Available at SSRN: https://ssrn.com/abstract=2557754

David Grenardo (Contact Author)

University of St. Thomas - School of Law (Minnesota) ( email )

MSL 400, 1000 La Salle Avenue
Minneapolis, MN Minnesota 55403-2005
United States

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