Should Judges Regulate Lawyers?
Judicial Ethics and Accountability: At Home and Abroad (Symposium Issue), Forthcoming
28 Pages Posted: 6 Jan 2011 Last revised: 21 Mar 2012
In an era of increased knowledge about judicial decision-making, performance, and role, a time in which simplistic assumptions about the judiciary are replaced with constructive and detailed informed analyses, myths about judges ought to be discredited. One such simplistic assumption is that judges should regulate lawyers. This Article shows this assumption is neither obvious nor easily explained. With regard to rule-promulgation, courts both under-regulate and over-regulate lawyers. By essentially deferring to the ABA Model Rules and to a process of rule implantation dominated by the organized bar, the judiciary does not do enough to meaningfully participate in promulgating top-down, system-wide rules of conduct. At the same time, by adopting a multitude of local rules, the judiciary over-promulgates ad hoc rules which results in splintered rules and unnecessary confusion on the part of both lawyers and clients. Similarly, the conventional wisdom of accepting, without question, the desirability of judicial enforcement of rules of professional conduct is considerably overstated. While judges are well-positioned to observe and react to some attorney misconduct, they are ill-positioned to detect and react to other instances of wrongdoing.
Should judges regulate lawyers? It depends. In some circumstances, judicial promulgation and enforcement of rules of professional conduct is desirable, while in others it is not. The first step towards answering the question in context is to abandon the simplistic assumption that judges should regulate lawyers. History and tradition notwithstanding, there is simply little support, analytical or empirical, to the assertion that judges effectively regulate and thus should regulate the legal profession.
Any discussion of judicial regulation of lawyers cannot escape the "elephant in the room". The question of whether judges should regulate lawyers involves more than simple issues of the relative competence and efficiency of the judiciary vis-à-vis other regulators. It entails nothing short of the future of the legal profession’s prerogative of self-regulation. The legal profession has long invoked the power of the judiciary to regulate lawyers as a shield against external regulation of the bar, conveniently framing the debate over self-regulation as a constitutional inquiry regarding judicial regulation of lawyers, and doubts about the efficacy of self-regulation as an assault on the integrity of the judiciary. Arguably, however, the legal profession has vigorously defended the regulation of lawyers by the judiciary not out of loyalty and deference to the courts but rather because questioning judicial regulation would undermine self-regulation by opening the door to external regulation of the practice of law. Indeed, questioning judicial regulation of lawyers may very well come with a hefty price tag – hastening the loss of self-regulation – yet the self-interest of the profession in continuing to self-regulate should not be confused with disrespect for the judiciary and should not hinder legitimate analysis of the regulation of lawyers.
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