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 professional 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 principally 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 unincorporated 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.