Why Your Jurisdiction Should Consider Jumping on the Regulatory Objectives Bandwagon

Abstract

As a result of the ABA's February 2016 adoption of Model Regulatory Objectives for the Provision of Legal Services, there is great interest in this topic. As this article explains, the “regulatory objectives movement” is a relatively new movement that can be traced to events culminating in the adoption of the 2007 UK Legal Services Act. Section 1 of that Act set forth the regulatory objectives that the Act — and its implementation — should achieve. The UK Act was followed by initiatives in a number of other national jurisdictions that sought to identify regulatory objectives for the legal profession. It has become increasingly common to find jurisdictions adopting an explicit and succinct statement of the goals they are trying to achieve when they regulate lawyers. The form that such adoption takes depends on the jurisdiction's system of lawyer regulation. Thus, in the U.S., it likely would be a state's high court and not the legislature or a law society that would adopt regulatory objectives,

This article explains why the author recommends that jurisdictions develop regulatory objectives. Adoption of regulatory objectives - which is a fancy way of saying that a jurisdiction should explicitly articulate the goals it is trying to achieve - should lead to greater public understanding of our system of lawyer regulation. By explicitly articulating the goals of regulation ahead of time, it is less likely that any particular regulation will be motivated by an improper purposes (such as lawyer self-interest) because the proponents can be asked to articulate the purpose that is served by the proposed ethics rule or other regulatory provision. Having explicitly-stated goals also makes it easier for those who regulate lawyers to respond to claims that regulation of lawyers is motivated purely by lawyer self-interest.

This article argues that although the process of developing regulatory objectives may require the investment of time and resources in the short term, this investment should prove worthwhile in the long term. The article recommends that jurisdictions use an adoption process that is transparent and that encourages meaningful input from a wide variety of stakeholders. For example, each state Supreme Court could establish a “regulatory objectives” task force that includes lawyers, clients, judges, and representatives from consumer protection and antitrust agencies. The task force should be given a deadline by which it is expected to circulate a draft set of proposed regulatory objectives. These draft objectives should be widely circulated at in-person gatherings of lawyers, such as an annual state bar meeting, and at meetings where there are in-person gatherings of other important stakeholders, such as clients, courts, and the public. After gathering written and oral comments, the regulatory objectives task force should present its final recommendations to the high court for adoption. This process should ensure that inadvertent omissions are avoided (such as client protection, which is not included in the ABA's February 2016 Model Regulatory Objectives). This process could contribute to a vigorous and healthy public debate about the goals of lawyer regulation. The article concludes by urging US states to jump on the regulatory objectives bandwagon and to begin the process of developing objectives suitable for their respective jurisdictions.

Keywords: regulatory objectives, legal services, proactive regulation, Nova Scotia, New South Wales, Parker, Schneyer

JEL Classification: K19, K23