The Role of Speech Regarding Constraints on Attorney Performance: An Institutional Design Analysis

Abstract

This article provides an account of the legal profession’s growing openness to acknowledging and assessing the extent to which lawyers appearing in court sometimes provide something less than full representation, using the courts’ response to this past fall’s “robo-signing” scandal as an example. It relies primarily on the theoretical frame of institutional design principles, with a focus on the role of information in institutional design. It describes the judiciary’s Twentieth Century dedication to the notion of a lawyer as the means to provide access to the courts, accompanied by a resistance to examining the level of representation lawyers provide, particularly in the indigent defense context. It then examines several trends that have emerged over the past decade: the Supreme Court’s increasing embrace of professional practice standards to assess ineffective assistance of counsel claims, an ABA ethics opinion requiring indigent defense counsel to seek a reduction in their caseloads when they can no longer perform essential tasks, judicial openness to the use of engaged judging techniques in cases involving pro se litigants, and open acknowledgement of the limited scope representation provided by attorneys in private practice. Finally, it contemplates what would happen if, in all cases, the profession established a baseline set of attorney tasks and a route for attorneys to convey information about which tasks they will and will not perform.

Keywords: Institutional design, limited scope representation, access to justice, inquisitorial, adversarial

JEL Classification: K41