Green and Zacharias on The "May" Rules of Ethical Conduct: Discretion With Constraints?

Posted by Alan Childress

Bruce Green (Fordham, bottom left) and Fred Zacharias (U. San Diego, right) have posted on SSRN their article, "Permissive Rules of Professional Conduct."  It will be published in Minnesota Law Review's volume 91. Here is the abstract:

This Article examines permissive rules of professional conduct--that is, rules providing that lawyers “may” engage in particular conduct--and the implications of these rules for other law governing lawyers. One might assume that, when a professional code explicitly authorizes lawyers to engage in certain behavior, the drafters made a normative judgment that the best way to regulate the conduct covered by the rule is to let lawyers determine how to act as a matter of individual discretion. One might also take the view that this normative judgment is worthy of respect and that other lawmakers should not encroach on the discretion accorded by the rules.

This Article calls that view into question. It demonstrates that permissive aspects of the professional codes may be more limited than  readily apparent and that, even when the code drafters intend to relegate issues to lawyers' discretion, their justifications for according discretion often leave room for external constraints.