Rethinking Lawyer Regulation: How a Relational Approach Would Improve Professional Rules and Roles
25 Pages Posted: 1 Jul 2015 Last revised: 16 Jul 2015
Date Written: 2012
This Article offers both a way to understand emerging developments in the regulation of the legal profession in the United States and internationally, and an explanation for why these developments grounded in a relational perspective on lawyers and their work are likely to be more effective in encouraging lawyers to follow the legal ethics rules and to fulfill professional aspirations.
The dominant United States approach to lawyer regulation is the command and control model that penalizes lawyers for failing to follow a lengthy set of prescribed rules. As theAarticle explains, this approach assumes – and reinforces the idea – that lawyers are Holmesian bad men who approach rules with the goal of figuring out what they can get away with within the bounds of the law. Such an approach will inevitably lead many lawyers to think of legal ethics rules as both the floor and ceiling of their aspirations, and will encourage lawyers to treat the rules instrumentally.
In contrast, a principles-based approach similar to those in Australia and the United Kingdom, creates a system where regulators initially articulate a set of goals, and lawyers then work with the regulators to develop a plan for complying with those goals, including proactive programs to audit compliance. This approach acknowledges the reality that lawyers and regulators both function through a web of relationships and seeks to create incentives within those relationships for lawyers to comply with both the letter and the spirit of professional regulations. Lawyers who help develop their own plans would have an incentive to follow them, and they could create plans through law firms or, if they are in small or solo practices, through plans they develop in groups sponsored by bar associations.
As a historical note, we also offer an explanation for the much-noted evolution of legal ethics rules from aspirations to black letter law during the course of the Twentieth Century. A relational understanding of lawyers supported the aspirational approach, while an atomistic view led to formal rules. Today, in order to restore professional respirations, the community of lawyers needs to achieve a balance between rules and aspirations that can only occur within a relational framework that acknowledges that lawyers are both individuals and members of communities.
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