Ethics in the Age of Un-incorporation: A Return to Ambiguity of Pre-Incorporation or an Opportunity to Contract for Clarity?

In this article, Professor Painter examines the scope of an attorney’s pro-fessional responsibility in the age of un-incorporation. Judicial opinions and Model Rules defining the responsibilities of attorneys representing incorporated entities are inadequate, he argues, when employed in the context of un-incorporation. Without guidance from case law or rules, attorneys and clients confront many of the same dilemmas which they confronted in the pre-incorporation era when business was done princi-pally through partnerships, trusts, and other unincorporated entities. The fluidity of the un-incorporation framework, however, renders rule making and judge-made law difficult.Instead of relying on rules and scarce case law, Professor Painter urges the use of private ordering—where lawyers and clients contract with each other ex ante—determining before entering into representation of an un-incorporated entity what the attorney’s ethical responsibilities will be, and to whom she owes them. By contracting for clarity in an un-incorporation relationship, attorneys can protect themselves from ethical quandaries and avoid the ambiguities that plagued the era of pre-incorporation.

The full text of this Symposium is available to download as a PDF.