One thing that defines the legal profession is that it’s “self-governing.” Lawyers have ethical regulations that bind them together in service to others. But do lawyer ethics rules effectively serve the profession? Do these regulations serve the public? Not as well as they should.
Rationale for Self-Regulation
What’s this notion of “self-regulation?” Lawyers aren’t licensed or regulated by a department within the executive branch of the government but by state supreme courts. This isn’t set forth in the rules themselves but has evolved by case law and is referenced in the Preamble to the Model Rules of Professional Conduct.
According to paragraphs 10 through 12 of the Preamble, the legal profession has been granted the powers of self-government because of its close relationship with the processes of government and law enforcement. Ultimate authority over the legal profession is vested in the courts largely under the assumption that if lawyers meet the obligations of the profession, government regulation isn’t necessary. And with regulation vested in the courts, the legal profession is independent from government domination.
The Preamble says: “An independent legal profession is an important force in preserving government under law, for abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice.”
It goes on to say that the legal profession has a special responsibility to “assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar.”
Do Lawyer Ethics Rules Serve the Public?
Some who study the profession argue that the attorney regulations aren’t “conceived in the public interest” because they don’t protect the public and don’t serve the public interest.
Carolyn Elefant, author of the blog MyShingle, is a solo practitioner who argues that some lawyer ethics rules impede the ability of solo and small firm practitioners to deliver quality legal services. She believes that consumers would benefit from lawyers teaming up with allied professionals to deliver seamless services.
For example, wouldn’t it serve consumers if lawyers and tax accountants rendered legal and related services in a joint venture? The resulting product could be tailored to fit client needs while being bundled at a lower cost. Maybe so—but Rule 5.4 doesn’t allow such a business structure.
Do Lawyer Ethics Rules Serve the Profession—or Society?
Lawyer ethics rules are meant to hold legal professionals to the higher value of serving the public good. In this vein, does the legal profession embrace and reflect the proven societal value of diversity and inclusion?
Research shows that greater diversity among leadership, whether on boards, in executive committees or in the C-suite, yields better decision-making. Yet the legal profession remains stubbornly non-diverse. It’s less diverse in terms of women and people of color in leadership than virtually any other profession. While our society is becoming increasingly more diverse, is it acceptable that our legal and judicial systems don’t reflect this diversity?
As I’ve written before, David Douglass, a partner at Sheppard Mullin, argues that the ABA Model Rules are out of step by prohibiting only intentional harassment and discrimination. The science of implicit bias is evidence that lawyers and judges, like all human beings, are making biased gut decisions daily. And this is likely contributing to the lack of diversity in our profession.
Douglass proposes that the ABA adopts a model Rule acknowledging that lawyers have an ethical obligation to promote the ideal of equality for all members of society. This means lawyers should be required to take affirmative steps to remedy discrimination, eliminate bias and promote diversity and inclusion in the legal profession. In other words, the profession needs to put its money where its mouth is.
Come hear provocative talks on these topics from Elefant and Douglass at The Future is Now: Legal Services 2.019 on Thursday, May 16 in Chicago. Attendees will have the option to join the conversation during five town hall discussions. Register while seats are still available.