In order to be a full-time law professor, under ABA accreditation standards, one must limit their practice of law. However, according to the rules of profesional conduct, a member of the bar can only limit their practice of law in very narrow circumstances. Would ABA accreditation standards be in tension with ABA model rules, such that a full-time professor who certifies that they are not engaged
ABA Accreditation Standard 402(B) places certain limitations on what a full-time member of the faculty can do outside of teaching. Specifically, it severely limits the professor’s ability to engage in the practice of law.
A full-time faculty member is one whose primary professional employment is with the law school and who devotes substantially all working time during the academic year to the responsibilities described in Standard 404(a), and whose outside professional activities, if any, are limited to those that relate to major academic interests or enrich the faculty member’s capacity as a scholar and teacher, are of service to the legal profession and the public generally, and do not unduly interfere with one’s responsibility as a faculty member.
As part of this accreditation standard, I had to certify to the law school that any outside-practice is minimal.
An interpretation of this standard makes clear that full-time faculty should not have a relationship with a law firm:
Regularly engaging in law practice or having an ongoing relationship with a law ﬁ rm or other business creates a presumption that a faculty member is not a full-time faculty member under this Standard. This presumption may be rebutted if the law school is able to demonstrate that the individual has a full-time commitment to teaching, research, and public service, is available to students, and is able to participate in the governance of the institution to the same extent expected of full-time faculty.
Many state professional rules of conduct place strong restrictions on an attorney’s ability to limit his practice of law.
ABA Model Rule 5.6 (Restrictions On Right To Practice) provides:
A lawyer shall not participate in offering or making:
(a) a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or
(b) an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy.
Similarly, California Bar Rule 1-500 provides:
(A) A member shall not be a party to or participate in offering or making an agreement, whether in connection with the settlement of a lawsuit or otherwise, if the agreement restricts the right of a member to practice law, except that this rule shall not prohibit such an agreement which:
(1) Is a part of an employment, shareholders’, or partnership agreement among members provided the restrictive agreement does not survive the termination of the employment, shareholder, or partnership relationship; or
(2) Requires payments to a member upon the member’s retirement from the practice of law; or
(3) Is authorized by Business and professions Code sections 6092.5 subdivision (i), or 6093.
(B) A member shall not be a party to or participate in offering or making an agreement which precludes the reporting of a violation of these rules.
The form I had to certify for purposes of ABA accreditation perhaps could be considered an “employment” contract, or maybe “other similar type,” though ejusdem generis, those agreements all seem to apply to law firm partnership matters, not ABA accreditation standards.
Could it be that full-time law professors who certifies such a form would be in violation of this rule of professional conduct? There seems to be ethical issues here–and maybe even antitrust concerns?
Of course, a professor who has to make this certification could choose to withdraw from the bar in order to avoid this conflict, though that would hardly be a desirable result, as that would limit even the ABA’s permitted practice of law related to academic matters.
Update: I think I may have read the statute too hastily. As David pointed out in the comments, the rules seem to allow restrictions during the employment relationship. An agreement can’t “restrict the right of a lawyer to practice after termination of the relationship.” I seem to recall something from professional responsibility that strongly disfavored any contracts that limit representation, but this rule does not quite capture that.