Frankfurt Kurnit Litigation Partner and Professional Responsibility Group Chair Ron Minkoff has joined six other veteran ethics and professional responsibility lawyers from across the nation in calling for the American Bar Association to launch a once-in-a-generation review of the mechanics, structure, reach, and infrastructure of lawyer discipline.
Joining Minkoff in the call to action are Mark Armitage (Executive Director and General Counsel, Michigan Attorney Discipline Board), Lydia Lawless (Bar Counsel, State of Maryland), Lucian Pera (Adams & Reese, Memphis, TN), Sari Montgomery (Robinson, Stewart, Montgomery & Doppke, Chicago, Ill.), Wendy Muchman (Northwestern University Pritzker School of Law, Evanston, Ill.), and Lynda Shely (The Shely Firm, Phoenix, AZ).
Here's a summary of the article.
We seven ethics lawyers propose that the ABA review the mechanics, structure, reach and infrastructure of lawyer discipline in the United States. We work for law firms, disciplinary agencies, and law schools, and most of us are active in the ABA and organizations of ethics professionals. We have more than 200 years of collective experience in the field. We make this appeal only in our personal capacities, and do not speak for our firms, employers, the ABA, or other organizations. We believe it's time for the ABA to renew its historic leadership in lawyer discipline. And we believe many in lawyer ethics and regulation share our view. This proposal is about the procedure and structure of lawyer discipline; it is not about changing the substance of the Model Rules.
In 1970, the ABA’s Clark Committee, headed by former US Supreme Court Justice Tom Clark, found a lawyer discipline system in “a scandalous situation that require[d] the immediate attention of the profession.” Its three dozen recommendations led to the professionalization of what was previously a mostly volunteer-driven lawyer disciplinary system.
In 1989, the ABA launched the McKay Commission, named in honor of its first chair, former NYU School of Law Dean Robert B. McKay, to once again study the state of American lawyer discipline.
The ABA adopted its report in 1992, creating the blueprint for most of our current lawyer regulatory infrastructure, including alternatives to discipline, client protection funds, trust account overdraft notification, random audits of trust accounts, continued study of mandatory malpractice insurance requirements, lawyer assistance, and law practice management assistance.
That infrastructure has served the profession and the public well, but like the roads and bridges of our cities and states, the rules, procedures, enforcement tools, and jurisdictional boundaries of lawyer regulation need periodic maintenance. We believe this infrastructure of American lawyer discipline is overdue for an update.
Areas to Revamp
Lawful, appropriate practice by lawyers across the borders of US jurisdictions— multi-jurisdictional practice—has increased dramatically. The legal needs of clients—individuals, businesses, and governments—have increasingly become regional, national, and even international. But multijurisdictional enforcement by disciplinary authorities has not kept pace with multijurisdictional practice. Lawyer regulation needs to be updated to keep up.
Further, the boundaries of law practice and the legal services business have blurred and expanded. Alternative legal service providers sell legal services to clients of law firms and law departments. Lead generators and lawyer-matching services operate all over, some under regulation. A few jurisdictions authorize other alternative providers such as legal technicians, legal paraprofessionals, social workers, courthouse navigators, and more. How should these providers be regulated? By whom? Or should some continue to be regulated only by regulation of the lawyers who deal with them?
Some of the core procedural tools, created by the ABA years ago and used in most jurisdictions, are long since due for a full review. The ABA Model Rules for Lawyer Disciplinary Enforcement provide jurisdictions a template for lawyer discipline investigations and proceedings. They were adopted in 1989, and periodically tweaked, but no full review has been attempted in decades. The same is true for the ABA Standards for Imposing Lawyer Sanctions, the guidelines most jurisdictions as sentencing guidelines for lawyer discipline and last amended 30 years ago.
We believe the ABA president should appoint a group of experts, from all relevant constituencies and with relevant experience, to survey the current landscape and the last few decades’ experience, as well as innovations abroad, to update our lawyer regulatory infrastructure.
This group needs to preserve the strengths of the current system, which include individual accountability, client-focused rules, and increasing attention to the prevention and redress of misconduct. Those experts should include veteran regulatory counsel from jurisdictions big and small, disciplinary defense counsel, academics who study lawyer regulation, client protection fund administrators, IOLTA program representatives, and ultimate regulators such as state supreme court justices.
That’s how ABA leadership in ethics and lawyer regulation has worked—and worked successfully—for more than 100 years. In the history of lawyer regulation in this country, no single organization has done remotely as much as the ABA to advance client and public protection and responsible and sensible regulation. In fact, the success of lawyer regulation in the US owes more to the ABA than any other organization.
It’s time for the ABA to step up again and renew our lawyer regulatory system to meet the needs of the next generation.
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We believe it’s time for the ABA to launch a fresh, high-level effort to renew lawyer discipline system in the US.