James E. Moliterno, the Trouble With Lawyer Regulation

• Publication year: 2013

THE TROUBLE WITH LAWYER REGULATION

James E. Moliterno*

ABSTRACT

The American legal profession has been a backward-looking, change- resistant institution. It has failed to adjust to changes in society, technology, and economics, despite individual lawyers’ efforts to change their own practices and entrepreneurs’ efforts to enter the legal marketplace to serve the needs of middle- and lower-income clients. When change does come, the legal profession is a late-arriver, usually doing no better than catching up to changes around it that have already become well ensconced. This failure robs society of what could be a positive role of the legal profession in times of change, and it deprives the profession itself of being as robust and successful as it could be.

INTRODUCTION

The history of the legal profession’s self-regulation during self-identified crises—such as the present—is not a happy one. The profession has resisted change. When it did institute change, the change was directed not at the existing members of the profession, but at new entrants.1 Mostly, change that

has come has been forced by influences of society, culture, economics, and globalization—not by the profession itself. Watergate, communist infiltration, the arrival of waves of immigrants, the litigation explosion, the civility crisis, and the current economic crisis have blended with dramatic changes in

* James E. Moliterno is the Vincent Bradford Professor of Law at Washington & Lee University School of Law. He has a leadership role in W&L’s third-year curriculum reform. He was the 2012 recipient of the Rebuilding Justice Award from the Institute for the Advancement of the American Legal System (IAALS) in recognition of his career-long legal education reform work. He is author or co-author of ten books, including THE AMERICAN LEGAL PROFESSION IN CRISIS: RESISTANCE AND RESPONSES TO CHANGE (2013), and numerous

articles on legal ethics and legal education. He has engaged in substantial international legal ethics and legal education reform work in Serbia, Armenia, Georgia, Czech Republic, Kosovo, Slovakia, Spain, Japan, China, Indonesia, and Thailand.

1. For example, the changes made after Watergate—adding the required lawyer ethics course and the

   Multistate Professional Responsibility Exam (MPRE)—affected no one already in the profession. JAMES E. MOLITERNO, THE AMERICAN LEGAL PROFESSION IN CRISIS: RESISTANCE AND RESPONSES TO CHANGE 18–46, 96–107 (2013).

   
   

   technology, communications, and globalization.2 In each of these instances, the profession held fast to its history and ways long after those ways had become anachronistic.3 The profession seems to repeat the same question in response to every crisis: How can we stay even more “the same” than we already are?

   
   

   In short, the legal profession is ponderous, backward looking, and self- preserving. The currently functioning American Bar Association’s Commission on Ethics 20/20 was established because of the dramatic changes in the economics of law practice, globalization, and technology.4 Yet its mission statement sets the tone for its work: “The principles guiding the

   Commission’s work are protection of the public; preservation of core professional values; and maintenance of a strong, independent and self- regulated profession.”5 Protect, preserve, and maintain. This most recent “reform” mission statement is strikingly similar to that of the first bar

   association’s, born in the 1870s of “crisis” and formed to “protect, purify and preserve the profession.”6 This Article recommends a more forward-looking approach that welcomes the views, and even control, of nonlawyers and innovators in business and other enterprises. My hope is that the legal profession can be more like companies that have thrived because of their innovative tendencies (e.g., Apple, IBM, and Western Union), and less like companies whose stagnancy caused large-scale problems (e.g., Kodak).7

   
   

   Albert Einstein taught us, “You cannot solve a problem from the same consciousness that created it. You must learn to see the world anew.”8 The American legal profession tries to solve problems with the same thinking that created the problems. It clings to the past and precedent and seeks only to

   
   

2. These themes were developed in MOLITERNO, supra note 1.

3. Id.

4. See ABA COMM’N ON ETHICS 20/20, INTRODUCTION AND OVERVIEW 3–7 (2012), available at

   http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/20120508_ethics_20_20_final_hod_ introdution_and_overview_report.authcheckdam.pdf.

5. Memorandum from the ABA Comm’n on Ethics 20/20 Working Grp. on Alt. Bus. Structures to ABA

   Entities, Courts, Bar Ass’ns (State, Local, Specialty & Int’l), Law Sch., & Individuals 1 (Apr. 5, 2011) [hereinafter ABA 20/20 Memo] (on file with author) (concerning alternative business structures).

6. Professional Organization, 6 ALB. L.J. 233, 233 (1872).

7. See infra Part I.B.

8. His Royal Highness the Prince of Wales, Speech to the Italian Chamber of Deputies (Apr. 27, 2009), available at https://www.princeofwales.gov.uk/media/speeches/speech-hrh-the-prince-of-wales-the-italian- chamber-of-deputies-rome-italy. Other versions of this quote, credited to Einstein, include: “We can’t solve

   problems by using the same kind of thinking we used when we created them.” David Mielach, We Can’t Solve Problems by Using the Same Kind of Thinking We Used When We Created Them, BUS. INSIDER (Apr. 19, 2012), http://articles.businessinsider.com/2012-04-19/strategy/31366385_1_business-lessons-success-business.

   “protect[] . . . preserv[e] . . . and [maintain].”9 The American legal profession acts as if preserving the status quo will solve all, when in fact it will solve nothing. This backward thinking, the same thinking that preceded each crisis, exacerbates the impact of each crisis. More than anything else, the legal profession would benefit from the thinking patterns of innovative nonlawyers.

   
   

   When change comes to the legal profession, it is brought by forces outside the bar. For example, early twentieth-century immigrants eventually integrated themselves into the bar notwithstanding the bar’s efforts to diminish and exclude them.10 Other changes in demographics and culture that led to the

   entry of women and African Americans into the profession were inevitable, yet were resisted by the profession at various times.11 Communism came and went without being affected by the bar’s efforts to stem the tide of its professional infiltration.12 The “civility crisis” of the 1990s came into the profession as the world was becoming a more competitive place, and road rage reflected one external symptom of an anxious society.13 The profession’s decades-long, repeated efforts to protect confidentiality even in the face of corporate frauds finally collapsed in the post-Enron era, when change in the Model Rules of Professional Conduct was largely driven by Securities and Exchange Commission (SEC) regulations adopted over the profession’s objections.14 Economic changes from the 2000s are what they are. The legal market— domestic and global—will continually undergo change, and the bar’s reaction to these changes will not stay their effects. Instead of resisting change, the profession should become more attuned to events and trends outside its walls.

   The profession should adjust and become a player in how change is assimilated into established ways and how outmoded (but established) ways are replaced by more effective ones.

   
   

   The change occasionally wrought at the hands of the organized bar seems designed to leave the lives of the bar’s elite unchanged to the greatest extent

   
   

9. See ABA 20/20 Memo, supra note 5 (“The American Bar Association Commission on Ethics 20/20 is examining the impact of globalization and technology on the legal profession. The principles guiding the Commission’s work are protection of the public; preservation of core professional values; and maintenance of a strong, independent and self-regulated profession.”).

10. See James E. Moliterno, Politically Motivated Bar Discipline, 83 WASH. U. L.Q. 725, 731–34 (2005)

    [hereinafter Moliterno, Bar Discipline]. See generally MOLITERNO, supra note 1.

11. See MOLITERNO, supra note 1, at 63–95.

12. See Moliterno, Bar Discipline, supra note 10, at 734–39.

13. See MOLITERNO, supra note 1, at 131–61.

14 Id. at 162–77.

possible.15 The major changes that followed from Watergate raised entry barriers, including the Multistate Professional Responsibility Examination (MPRE) and required ethics courses in law school, but they had barely a wisp of effect on lawyers already admitted to the bar.16

The legal profession and the society it claims to serve would be better served if regulation of the legal profession were more open and viewpoint inclusive. No entity—whether motivated by profit, altruism, or a mixture of the two—can manage itself without an eye to the future. Successful businesses and institutions engage in forward-looking, strategic planning; examine society’s trends to predict future markets; and modify their own ways to be well positioned to succeed in achieving their goals, regardless of the circumstances.

In contrast, the American legal profession regulates primarily in response to crisis.17 When the ABA does regulate, it makes the least possible change. Much of the “change” that is made is done to preserve the status quo. For example, the 1908 ABA Canons of Professional Ethics were almost entirely copied from materials published in 1834, 1854, and 1870, and the only new

material prohibited advertising and was meant to thwart the effectiveness and market penetration of the emerging plaintiff’s lawyer class, composed mainly of immigrant stock.18 In the late 1970s, the scramble of change was meant primarily to quell the furor over Watergate. Today, the proposed changes made by the ABA Commission on Ethics 20/2019 do little more than formally capitulate to the irresistible forces of technology and global changes that have

1. For example, the changes made after Watergate—adding the required lawyer ethics course and the...