Article. Abstract:
Every semester in law schools across the country, law students and professors struggle with the situation presented in the Texas Supreme Court case of Bohatch v. Butler & Binion. In the case, a law firm partner, Bohatch, is fired for following the rules of professional conduct when she reports suspected overbilling by a fellow partner. The Supreme Court of Texas held that Bohatch needed to follow her ethical duty to report the suspected overbilling, but the law firm could properly fire her for doing so because, among other things, the trust and confidence needed for a partnership trumped any purported policy to protect a whistleblower in a law firm. And once she reported her fellow partner, Bohatch lost the trust of the partnership.
This case has generated a number of articles, and many scholars analyzing the Bohatch case have argued that attorneys should not be fired or should be protected for following the rules of professional conduct when reporting the misconduct of a fellow partner. This Article, however, defends the Bohatch result and provides a unique and compelling approach to analyzing this situation when a law firm partnership can fire a fellow partner for reporting a fellow partner in accordance with the rules of professional conduct.
In particular, this Article argues that the point at which the analysis should begin is when the associate or lateral partner makes the decision to become a partner in a law firm. This paradigm shift correlates directly with several basic principles of partnership law, law in general, and common sense, which are discussed in the Article. These basic principles, individually and collectively, represent the notion that attorneys must be extremely careful and diligent when making the choice of whether to become a partner with other attorneys because an attorney must suffer the negative consequences of choosing partners whose misconduct can affect the attorney. Attorneys possess the opportunity to make informed decisions about the firms they choose to become partners at and, thus, who their partners are. There is guidance and advice throughout this Article on how attorneys should determine if they want to become partners at a law firm.
The analysis in a Bohatch scenario should begin at the point when an attorney decides to become a partner with other attorneys, and the analysis should end when an attorney turns in a fellow partner to the State Bar, thus removing the trust required for the partnership to survive. Part of this Article focuses on the topic of trust, which serves as the backbone of the correctly decided Bohatch case. Any endeavor, including law firm partnerships, where the participants are depending upon each other for success or failure makes trust and complete belief in the other participants absolutely critical to maintaining and sustaining the relationship. This Article discusses sports teams, Navy SEALS, and spouses in marriage, the ultimate social contract, each of which demand trust amongst the individuals to survive and flourish.
This Article also examines the arguments against the Bohatch decision, and it responds to those arguments.
This Article concludes that the court correctly decided the Bohatch case, and any court that subsequently decides this same issue should reach the same conclusion that the Bohatch court did.