Ethics

I'm live-blogging pretty-quick-blogging the annual ABA Center for Professional Responsibility conference, and the opening session is a series of debates about fundamental regulatory changes that may be coming.  The first debate is over the following (hypothetical) resolution:

Resolved, that Model Rule 1.10 be amended to remove imputation within a law firm in the context of concurrent representation where: (1) a timely screen is erected, (2) the matters are not substantially related; (3) each involved client is given notice; and (4) there is no substantial risk that representation of any firm client will be adversely affected.

Robert Creamer, representing the "pro" side, made the following arguments along the theme of "Yesterday's Gone":

Automatic imputation is rooted in the 19th century, when firms were much smaller and attorney-client relations were more stable.

The changes do not pose a threat to the duty of loyalty because the proposal involves only matters unrelated to the current representation.  Clients now view legal services as a commodity and lawyers as largely fungible.

Courts have rejected automatic imputation in several cases.

I'm most interested in the loyalty argument.  As with the debates over the recent amendment regarding the imputation of successive conflicts, proponents of "reform" seem (to me) to be slicing and dicing the concept of loyalty, thinning it out to focus solely on discrete instances of potential harm to client interests, rather than on the integrity of the broader attorney-client relationship.  By putting the right procedure into place to reduce the likelihood of a specific harm, we reassure ourselves that the value of loyalty is maintained.  At the same time, lawyers complain that clients are not as likely to look to them for the long-term stewardship of the client's overarching well-being.  Now we fear that we're becoming nothing more than contractors who provide a particular commodity at a particular time for a narrow purpose.  I'm not suggesting that our narrowing conception of loyalty has been the source of these changing market dynamics, but it does seem to me that our narrowing conception of loyaty exacerbates these market dynamics.