Office of Bar Counsel, 1218 WYBJ, Vol. 41 No. 6. 12

Author:Mark W. Gifford Wyoming State Bar Office of Bar Counsel Cheyenne, Wyoming
Position::Vol. 41 6 Pg. 12
 
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Office of Bar Counsel

Vol. 41 No. 6 Pg. 12

Wyoming Bar Journal

December, 2018

PMBR: The Future of Attorney Regulation

Mark W. Gifford Wyoming State Bar Office of Bar Counsel Cheyenne, Wyoming

Proactive management-based regulation (PMBR), the fresh face of attorney regulation, traces its roots to Australia, England and Wales. Efforts are currently underway to implement PMBR in Colorado and Illinois, in addition to several Canadian provinces. In a nutshell, PMBR shifts the focus of attorney regulation away from discipline and towards efforts to promote the ethical practice of law by assisting lawyers with management of their practices. PMBR emphasizes such proactive measures as a complement to professional discipline and prevails upon law firm management to implement policies and procedures to serve as an "ethical infrastructure," thereby advancing the professional practice of law.

The benefits of this approach were first demonstrated in New South Wales, Australia, which beginning in 2004 required incorporated legal practices (ILPs) to self-evaluate and report to regulators on their compliance with a laundry list of practice management objectives. These self-evaluations are designed to focus practice managers on a handful of areas most likely to land lawyers in ethical hot water, including negligence, communications, delay, billing practices, conflicts of interest, employee supervision and trust account compliance. Regulators in New South Wales have authority to audit ILPs, a measure intended to assure that the self-evaluations are accurate. For ILPs that disclose less than full compliance, regulators can offer practice management assistance without having to resort to disciplinary proceedings and before clients have been harmed.

Following implementation of PMBR, complaints against ILPs in New South Wales fell by two-thirds. Similar drops have been experienced in other jurisdictions that have adopted the PMBR approach. The advantages are self-evident: Rather than focusing on individual conduct and administering discipline after the fact, regulatory resources are channeled to improving the management of law firms and preventing harm to clients and the public.

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