A New Approach to Attorney Regulation
Boston College Law Review

Abstract

For more than half a century, jurisdictions have relied on threats of disciplinary sanctions—sticks—to try to coerce attorneys to act in an ethical manner. In doing so, they have focused their efforts on establishing minimum standards of practice and sanctioning only those attorneys who fall well short of them. By crafting general rules that apply to all attorneys, however, jurisdictions have ignored the considerable differences that attorneys face as a result of their practice settings, years of experience, or individual identities. Furthermore, jurisdictions have struggled to establish clear standards to guide attorneys regarding their obligations—precisely because the settings in which their obligations arise are so complex. Perhaps no rule better epitomizes the deficiencies in this one-size-fits-all approach than the mandatory reporting rule, which has simultaneously created anxiety among attorneys about their reporting obligations and, with its strictures, engendered widespread noncompliance.

But there are other ways to conceive of professional lawyer regulation than merely policing and sanctioning the worst offenders. Other legal and nonlegal systems have increasingly turned to carrots to motivate people to act in ways that will benefit the greater good. Thus far, however, lawyer regulators have continued to unthinkingly cling to—and often double down on—the use of sticks out of a belief that such sanctions are needed to convince the public that the legal profession can continue to regulate itself.

This Article makes three primary contributions to the discourse on reforming professional lawyer regulation through the lens of the mandatory reporting rule. First, it demonstrates the deficiencies and limitations created by a stick-based system almost exclusively focused on sanctions. Second, it proffers an alternative model—one leveraging the use of carrots—and draws upon the rational choice literature to identify criteria for determining which type of incentive to implement. Third, it provides a template for how professional lawyer regulation can be revitalized by incorporating carrots that encourage attorneys to strive for ethical heights, rather than relying on sticks that induce attorneys to do just enough to avoid disciplinary action.

Private Sanctions, Public Harm?
BYU Law Review

Abstract

The legal profession has a secret. In response to widespread public distrust in the profession’s ability to regulate itself, disciplinary authorities have undertaken modest efforts over the last several decades to make their activities more transparent. They have opened up their formal proceedings, publicized the identities of sanctioned attorneys, and shared information about their work online. But at the same time, most have quietly continued to resolve cases of ostensibly “minor” and “isolated” misconduct through private sanctions, keeping the identities of disciplined attorneys – and their misconduct – hidden from view.

This Article takes a comprehensive look at private sanctions to determine whether their continued use can be justified. It presents the results of an original empirical study on disciplinary systems throughout the country over the past twenty years, including five states that have revealed some details of their private sanctions. These data show that private sanctions are at times being imposed for misconduct that is anything but “minor” and on attorneys whose conduct is anything but “isolated.” Moreover, there is no persuasive evidence that private sanctions are having their intended deterrent effect or adequately protecting the public from the risk of future harm. Unless jurisdictions commit to greater transparency and can demonstrate that their private sanctions are being appropriately administered and are effective, they should not be able to continue disciplining attorneys behind closed doors.