When people talk about the future of legal ethics in the United States, it is always helpful to engage them in a dialogue about what purpose they think the regulation of lawyers is meant to serve. If you and the other person do not agree on what the purposes to be served are supposed to be, then you likely are not going to agree on what to do with respect to a particular regulatory issue. Our profession is certainly not monolithic (and perhaps fairly described as even a bit bi-polar) on the answer to the question of what lawyer regulation is supposed to accomplish.
This month bring us a nice example of developments in two different states that could impact the future of legal ethics and that present a pretty stark contrast about some core underlying concepts of why we regulate lawyers.
In Florida, a public forum was held about something that many, many U.S. jurisdictions see as a pretty, benign, and common sense concept – allowing some lawyers from other jurisdictions to become admitted to practice in your state without having to take the bar exam (admission by comity). In Tennessee, for example, although I have written repeatedly about a flaw embedded in our rule as a result of past revision by our Court and that hopefully is in the process of being fixed, we do embrace in our state the core concept of making admission by comity available generally to lawyers licensed in at least one other U.S. jurisdiction, who have been practicing law for a certain amount of time (we use 5 of the last 7 years), and who can otherwise meet character and fitness requirements. We also don’t require that your jurisdiction reciprocate.
Florida does not make admission by comity available, and a current proposal to do so according to this story from the ABA Journal is being met with pretty vociferous opposition. The quotes from the lawyers at the meeting who were in opposition and willing to say so publicly are quite telling on a few fronts, including a view of the purpose to be served by lawyer regulation.
One lawyer is quoted as stressing the “unique laws” that Florida has. But the same can be said about almost every state. Another lawyer disparaged the concept that Florida lawyers might want to gain the benefit of reciprocity to practice in such locales as Arkansas, Idaho, and Kansas, referring to them in words that if a sarcasm font existed would be printed using that font – “legal powerhouses.” And, yet, the lawyer quoted at most length, and who the story pegs as reflecting the sentiment of most of the lawyers in attendance at the forum, speaks a language in which lawyer regulations exist as much, if not more, for the very parochial interest of protecting lawyers from competition than for the purpose of protecting clients.
Forty-nine percent of law school grads can’t find long-term jobs. I ask you to search the Internet and find stories about shortages of lawyers in Florida. There are none. There are no concrete facts to explain why reciprocity would be good for our [bar] members or for the citizens the Florida Bar is serving.
On the other side of the country, Law360 gives us a story about a Colorado initiative aimed at establishing more “proactive” regulations patterned after a regulatory approach that began in Australia and has expanded elsewhere. The Colorado initiative discussed in the article would have as its goal not punishing lawyers after they engage in misconduct or make mistakes that hurt clients but “spotting practice problems and working with lawyers to fix them before a client is hurt.” I have been fortunate enough to be involved on a panel in the past with Professor Fortney who is quoted at length in this article and who has written extensively about what has gone on in Australia and “education toward compliance” strategies. You can read some of her writing on the subject here.
If you believe, as I do, that the goal for lawyer regulation should be drawing lines that work to protect and serve clients, then not only should you hope that the future of legal ethics doesn’t include further squabbling over common-sense things like the removal of overly-parochial restrictions on comity admission but also, and more importantly, the kind of movement in the regulatory system Colorado is contemplating.
In that respect, the good news is that the Law360 news item also includes quotes from powers-that-be in Illinois and D.C. that paint a potentially bright future for proactive regulatory approaches as a trend rather than an anomaly.