Reform or Professional Responsibility as Usual: Whither the Institutions of Regulation and Discipline?

Abstract

This article predicts five institutional changes that are likely to occur in the professional responsibility area in the twenty-first century. First, the enforcement of professional ethics will likely become more nationalized. Lawyers should expect a more uniform system of professional regulation and a greater degree of negotiation among the states and federal government concerning the types of regulation that are appropriate. Second, the article suggests that disciplinary systems will become more transparent, particularly with respect to policy-making in the disciplinary process and enforcement. Opening the process will enhance respect for the rules and improve enforcement techniques. Third, local bar associations will reevaluate the functions they perform and acknowledge the multiplicity, and occasional inconsistency, of the goals they seek to achieve. As a result, local bars will rely more on other regulators to restrain lawyer misconduct. They will shift their priorities towards functions, including lawyer assistance, that bar associations are uniquely suited to fulfilling. Fourth, the article predicts changes in the licensing and admission of lawyers. A system of specialty examination and licensing will provide official methods of differentiating among lawyers. At the same time, redefinition of the practice of law will result in a decrease in some forms of licensing. Greater recognition of the interrelationship between legal and nonlegal work will open the door to negotiation among the professions regarding who may provide services tangential to law. Sanctioning lay-providers may also be a necessary reaction to the growing, unsatisfied need of the poor and middle classes for law-related services.