February 27, 2023
Several Professional Responsibility lawyers and scholars recently published a proposal to renew the American system of lawyer discipline. It is not very long and it is worth reading.
The authors point out that although there has been "a steady drumbeat of discussion" about questions of nonlawyer ownership of law firms, fee-sharing with nonlawyers, and licensing of legal para-professionals, there are other important aspects of lawyer regulation that need to be updated. For that reason, they are calling for the ABA to engage in a revision of the infrastructure of lawyer regulation, rather than the substance of ethics rules.
For example, the proposal suggests that we should consider whether the boundaries of regulation should change, or expand. They ask, among other things, whether regulation should expand through new types of regulation of lawyers or by bringing others under some form of regulation and whether lawyers should be the ones in charge of the regulation or whether there should be new regulators?
The authors of the proposal also point out that there are several old documents adopted by the ABA to help jurisdictions implement their regulatory systems that have been largely ignored or that are in need of updates. For example, the ABA Model Rules for Lawyer Disciplinary Enforcement were adopted to provide jurisdictions a template for investigations and proceedings governing lawyer discipline. These model rules were adopted in 1989 but have not been revised in decades. The same is true for the ABA Standards for Imposing Lawyer Sanctions which were last amended 30 years ago and for the Model Rules for Lawyers’ Funds for Client Protection Funds (last updated in 1989) and the Model Rules for Client Trust Account Records which were last amended in 2010.
Given all this, the authors of the proposal suggest
. . . that the ABA president should appoint a group of experts from all the relevant constituencies to survey the current landscape and experience of the last few decades. This review should include the more than 50 versions of disciplinary enforcement rules currently operating in US jurisdictions, as well as innovations in regulation US jurisdictions might adopt from other countries.
This group should examine carefully the full scope and record of other regulatory approaches and should also reinforce the strengths in our current system.
If you are reading this blog, you must be interested in Professional Responsibility issues; and if you are interested in Professional Responsibility issues you must be interested in discussing lawyer regulation. And for those reasons you should read the proposal in full. You can find a copy here. The Legal Profession Blog also has an excerpt here.
The New York Legal Ethics Reporter has a comment here.