The Evolving Regulation of the Legal Profession: The Costs of Indeterminancy and Certainty
Irma S. Russell
University of Montana - Alexander Blewett III School of Law
March 11, 2009
Professional Lawyer, Vol. 137, 2008
University of Tulsa Legal Studies Research Paper No. 2009-08
This Article examines the incentive systems of the common law and modern rules of lawyer discipline, which combine to form a dual system of lawyer regulation in this country. The Article considers discontinuities between this dual system of regulation created by the common law, which influenced the 1908 Canons of Professional Ethics, and the current disciplinary rules, presented by the Model Rules of Professional Conduct. While the Model Rules form the basis of lawyer discipline in most states, the approach presented in the Canons continues to have force because the common law applies to lawyers through contract and tort law. Like the common law, the Canons rely on indeterminate, general rules and a strong background requirement of reasonable conduct. The result was a sense of uncertainty for lawyers - like the uncertainty applicable to everyone in a common law system. The Model Rules seem to present greater certainty from the lawyer's perspective, with clearer standards and a presumption that no sanctions are possible absent a violation of a clear standard. Thus, the rules enhance due process for lawyers charged with misconduct. The Rules thus seem to lessen the indeterminacy of the common law to lawyers and reduce the likelihood of sanctions in uncertain circumstances. This approach may have costs, however, both in reduced public confidence in the system of justice and by creating an unfounded perception by lawyers that they are free from sanctions absent the certainty of the Model Rule standards. The net result of the dual system may be greater indeterminacy associated with divergent expectations and standards.
Number of Pages in PDF File: 21
Date posted: March 12, 2009 ; Last revised: January 4, 2011
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