Should Self-Regulating (Reactive) Ethics Move Over for A Proactive Process?

In a voluminous report, academician Ted Schneyer, Professor of Law at the University of Arizona James E. Rogers College of Law, puts forth a credible argument as to why the current culture of ethics is “reactive”, only becoming effective once someone complains.  

The self-regulating code has evolved from the earliest days of law in our land, when solo practitioners were BigLaw.  This, he says, is not conducive to real unbiased disciplinary action.   Law firm management should have broader ethics parameters.  The rules, such as they are, he says, are too scattered.  

Rarely are the ABA’s Model Rules of Professional Conduct enforced in the disciplinary process.

Professor Schneyer leans towards more proactive, management-based regulations.  This sort of reform would incorporate or bypass what attorneys refer to as Professional Self-Regulation (or PSR). (Since 1908, the state supreme courts and the bar have monitored these regulations.) Basically, these rules operate as follows:  the courts allow lawyers to operate in their states and “promulgate a code of professional conduct to regulate them”.  These codes are general enough to apply to all lawyers across-the-board.

They also promote a sense of solidarity. 

The bar puts forth the code rules and the advisory board—or the advisory ethics opinions—throw(s) light on or elucidates them.   However, there are other systems which today have shoved PSR’s authority aside.

Since 1985, courts and juries are able to impose civil or criminal penalties on attorneys.  Additionally, courts are able to call the shots regarding the lawyers who come before them and, too, there are specific federal agencies that have a say in how attorneys who represent clients within their jurisdiction do their job.  

That means that the bar no longer has as much regulatory power as it once did.   

Further usurpation of authority occurs as as more and more lawyers change jobs; law firms operate in more than one jurisdiction and lawyers strive to set up a practice in more than one state.

How, asks the professor, are lawyers to know whose ethics rules govern you directly?   

Professor Schneyer contends that PSR is still viable.  Much, very much, depends on how well and publicly the system is seen to promote “competent and ethical lawyering”. 

Law firm management can and should jump in to breathe some life into the traditional code of ethics.  For example, instances involving treating the client fairly should be addressed at the front lines.  Management, if it’s sound, can prevent these first-order of misconduct scenarios by enacting effective discipline.  (Examples would be addressing the misappropriation of clients’ funds or neglecting your client’s needs.) 

That raises a few questions, ‘though, one of which is whether a system so reactive—one that is triggered after-the-fact—can be enforced in the traditional process. Second, can a proactive regulatory process “complementing the regular disciplinary process” do the job by enabling PSR to use firm management as a dipping well to draw regulatory water from?  

The author is of the opinion that, if the state supreme courts adapt a “management-based regulation” that is indeed proactive, the answer is a resounding “yes”.   To read more, go here: http://www.arizonalawreview.org/pdf/53-2/53arizlrev577.pdf

-EM

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