Rationalizing Judicial Regulation of Lawyers

68 Pages Posted: 8 Jan 2009 Last revised: 10 Jul 2009

See all articles by Fred C. Zacharias

Fred C. Zacharias

University of San Diego School of Law

Bruce A. Green

Fordham University School of Law

Date Written: January 7, 2009


This Article addresses a range of problems arising from the failure of state courts to analyze the relationship among different forms of judge-made law governing lawyers. Ordinarily, state supreme courts promulgate disciplinary codes and local court rules governing lawyers practicing in their jurisdictions. Trial courts supplement these standards when, in the exercise of supervisory authority over lawyers and litigation, they disqualify or sanction lawyers in cases before them. In exercising equitable authority and presiding over civil-liability cases brought against lawyers, trial and appellate courts develop common-law standards governing lawyer conduct - sometimes drawing on the relevant ethics rules, sometimes not. Finally, designated courts, usually the states supreme courts, interpret and apply ethics rules in the context of overseeing disciplinary proceedings brought against lawyers for alleged misconduct. Although lawyers ordinarily look first to the prevailing legal ethics codes for guidance, courts have implemented doctrinal understandings outside the disciplinary setting that are not always consistent with the codes. In equitable, civil liability, and supervisory contexts, courts may tolerate professional conduct that appears to be forbidden by a disciplinary rule or proscribe conduct that appears to be permitted. As a consequence, the overall standards of professional behavior seem inherently indeterminate or unpredictable.

This Article attempts to make sense of the divergent norms of professional conduct by examining the various contexts in which courts implement professional regulation and considering why the different courts' views of appropriate behavior often diverge. The Article explores the legitimacy of the possible explanations for inconsistent decision making and the costs of such inconsistency, concluding that although there sometimes are valid reasons for courts to depart from disciplinary standards, divergence should be minimized. Toward that end, the Article offers an analytic framework for deciding questions of professional conduct that focuses on the functions that each court serves in the different decision-making contexts. The functional approach to judicial regulation of lawyers developed in this Article would limit divergent standards to situations in which they can be justified and, ultimately, would help rationalize the law governing lawyers.

Keywords: regulation of lawyers, discipline, professional responsibility, supervisory authority

JEL Classification: K00, K10

Suggested Citation

Zacharias, Fred C. and Green, Bruce A., Rationalizing Judicial Regulation of Lawyers (January 7, 2009). Ohio State Law Journal, Vol. 70, Spring 2009, San Diego Legal Studies Paper No. 09-001, Available at SSRN: https://ssrn.com/abstract=1324206

Fred C. Zacharias (Contact Author)

University of San Diego School of Law

5998 Alcala Park
San Diego, CA 92110-2492
United States

Bruce A. Green

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States
212-636-6851 (Phone)
212-636-6899 (Fax)

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