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Core Values: Professionalism and Independence Theories in Lawyer Regulation
http://ssrn.com/abstract=2262518 [This paper is part of a book project with the working title Justicia’s Legions: Legal Services Regulation at the Crossroads.]
Excerpt prepared by the author.
[Footnotes have been converted to endnotes here.]
North America is the common law world’s last bastion of traditional lawyer self-regulation. In the United States and in common law Canada, lawyers make and enforce almost all of the rules which govern legal service delivery.[i] North American lawyer regulatory regimes are also distinctive in their maintenance of a single, unified occupation of “lawyer,” in their insulation of law firms from non-lawyer ownership, and in their near-exclusive regulatory focus on individual lawyers as opposed to law firms. These attributes have endured on this continent, without radical changes, since the late 19th century. By contrast, over the past 40 years the common law regimes of Northern Europe, Australia and New Zealand have moved away from these elements of traditional lawyer regulation.[ii] They have done so, broadly speaking, in the name of competition and consumer rights.[iii]
Why have North American lawyers and legislators resisted such reforms and maintained traditional self-regulation? “To protect lawyers’ interests,” is essentially the response given by economists and critical sociologists.[iv] This private interest (or ‘market control’) theory of regulation has some adherents within the legal community, of whom Richard Abel is perhaps best known.[v] Analysis of Canadian legal services regulation in this tradition has come from scholars such as Harry Arthurs and Constance Backhouse.[vi]
Most North American lawyers, however, give a different explanation of their regulatory regimes. They say that traditional lawyer regulation aims to protect the interests of clients and the public, by upholding important “core values.”[vii] Although they do not reject competition and consumer rights as generalities, they consider them inappropriate guides for lawyer regulation. Theirs is the public interest theory of traditional lawyer regulation.[viii] It is an account of why this sphere of activity should be regulated in the distinctive way that it is, and why doing so advances client interests and public interests.
The public interest theory includes justifications for all of the four distinctive attributes of North American legal services regulation: (i) self-regulatory governance; (ii) regulatory maintenance of a single occupation of lawyer, (iii) insulation of law firms from non-lawyer ownership, and (iv) ethical focus on the individual practitioner. American and Canadian common law jurisdictions uphold all of these; other wealthy common law countries have gradually abandoned them since the 1970s.
This article seeks to elucidate this public interest theory, through a new reading of the legal and sociological literature. The thesis is that professionalism and independence are the two allied but conceptually distinct core values which animate the public interest theory of traditional lawyer regulation. When North American lawyers defend the regulatory status quo, they almost invariably invoke one or both of the professionalism and independence themes. This article does not ask whether this core of the regulatory apple is healthy or not, and it does not evaluate the public interest theory as an explanatory alternative to the private interest/market control theory. Rather, the goal is to trace the public interest theory to its two intellectual headwaters, and to show how it has been used to justify the four distinctive attributes of North American lawyer regulation.
Part II expounds the core value of professionalism. Drawing on functionalist sociology, the theory holds that lawyers, like doctors and some other skilled workers, are professionals who collectively constitute a profession. True professionals are characterized by their altruism and by their esoteric but socially useful expertise. Because of these special characteristics, traditional professional regulation is able to faithfully and efficiently serve the public interest. This arrangement is secured by a social contract. Because they are corps intermédiaires between the public and the state, self-regulating professions also play a salutary role in social cohesion.
Part III develops the core value of independence. This theory, which is specific to lawyers, holds that they should have independence from the state, independence from non-lawyers, and even, to a limited extent, independence from their own law firms. The independence value manifests itself in North American lawyers’ resistance of state oversight, in their refusal to accept non-lawyer authority within law firms, and in their insistence that legal ethics be regulated at the individual rather than the firm level.
[i] Québec, like Mexico, has a civil law system and a different lawyer regulatory regime.
[ii] Edward Shinnick, Fred Bruinsma and Christine Parker, “Aspects of regulatory reform in the legal profession: Australia, Ireland and the Netherlands” (2003) 10 International Journal of the Legal Profession 237; Julian Webb, “Turf wars and market control: competition and complexity in the market for legal services” (2004) 11 International Journal of the Legal Profession 81; Andrew Boon, “Professionalism under the Legal Services Act 2007” (2010) 17 International Journal of the Legal Profession 195.
[iii] D. Duncan Webb, “Are Lawyers Regulatable?” (2008) 5 Alberta Law Review 233; Judith L. Maute, “Global continental shifts to a new governance paradigm in lawyer regulation and consumer protection : riding the wave” in Reid Mortensen, Francesca Bartlett & Kieran Tranter eds., Alternative Perspectives on Lawyers and Legal Ethics: Reimagining the Profession (New York: Routledge, 2010)
[iv] Representative economic critiques of professional self-regulation can be seen in Milton Friedman, Capitalism and Freedom (Chicago: University of Chicago Press,  2002) and Clifford Winston, Robert W. Crandall and Vikram Maheshri, First Thing We Do, Let’s Deregulate All the Lawyers (Washington: Brookings Institution Press, 2011). Critical sociologists have reached similar conclusions through a different methodology. Leading texts include Magali Sarfatti Larson, The rise of professionalism : a sociological analysis (Berkeley: University of California Press, 1977) and Andrew Delano Abbott, The System of Professions : an Essay on the Division of Expert Labor (Chicago: University of Chicago Press, 1988).
[v] Richard L. Abel, American Lawyers, New ed. (New York: Oxford University Press, 1989) ; Lawyers in the Dock: Learning from Attorney Disciplinary Proceedings (New York: Oxford University Press, 2008) ; Lawyers on Trial: Understanding Ethical Misconduct (New York: Oxford University Press, 2011) . See also the work of Deborah Rhode and Benjamin H. Barton, e.g. Barton’s The Lawyer-Judge Bias in the American Legal System (Cambridge ; New York: Cambridge University Press, 2011).
[vi] Harry Arthurs, “Why Canadian Law Schools Do Not Teach Legal Ethics” in Kim Economides ed., Ethical Challenges to Legal Education and Conduct (Oxford: Hart Pub., 1998) 105; Harry Arthurs, “The Dead Parrot: Does Professional Self-Regulation Exhibit Vital Signs?” (1995) 33 Alta. Law Rev. 800; Constance Backhouse, “Gender and Race in the Construction of “Legal Professionalism”: Historical Perspectives (Paper presented at the First Colloquium on the Legal Profession)” London, Ontario, October, 2003) [unpublished] <www.lsuc.on.ca/media/constance_backhouse_gender_and_race.pdf>.
[vii] Centre for Professional Responsibility (ABA), Resolution 10F: Multidisciplinary Practice. (Chicago: American Bar Association, 2000), online: ABA <http://www.abanet.org/cpr/mdp/mdprecoml0f.html>; Illinois State Bar Association, Resolution Opposing Certain ABA Ethics 20/20 Proposals And/Or Working Drafts of Proposals and Affirming and Re-Adopting Policy on Fee Sharing and Non-Lawyer Ownership and Control of Law Practices. (Springfield, IL: ISBA, 2012), online: ABA <http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/
[viii] Michael Hantke-Domas, “The Public Interest Theory of Regulation: Non-Existence or Misinterpretation?” (2003) 15 European Journal of Law and Economics 165.
This paper is part of a book project with the working title Justicia’s Legions: Legal Services Regulation at the Crossroads. The full paper can be accessed via the hyperlinked title at the top of this post.