Self-regulation's tenuous status
Although the rhetoric of the ethics codes says otherwise, the legal profession is not today self-regulating. Once, it more truly was, but for many years, the state supreme courts, not the bar associations, have had the final say over both the rules and their application. (See Fred C. Zacharias, The Myth of Self-Regulation (2009) 93 Minn. L.Rev. 1147.) The criminal codes with punishment, court rules with sanctions, civil law with lawsuits, and the state bars with attorney discipline, moreover, all contribute to the regulation of the legal profession. As a practical matter, nonetheless, degrees of self-regulation can be differentiated, and the trend—at least in California—runs decidedly toward decrease. The Legislature drives this trend, which takes the form of diluting attorney representation on the California State Bar's Board of Governors (name to be changed to "Board of Trustees") with Supreme Court appointees.
The Legislative pressure would appear to express the rightward trend in politics, as it conventionally expresses the same anti-lawyer sentiment vented in extremist rhetoric, such as “jail for judges.” Yet, certain liberal-reformists—such as David Cameron Carr of the “respondents' bar”— favor further curtailing self-regulation. (But one must give Carr some credit for the name of his blog, Kafkaesq.)
The misplaced emphasis on crime
So, what are we to make of this confusing issue regarding attorney self-regulation? One reason for the issue’s murkiness is the incoherent realization of the California bar's partial self-regulation. Since the Supreme Court is supposed to exercise ultimate authority over attorney discipline, attorney election of delegates makes sense only if attorneys and judges have identical interests or the ethical codes can constrain attorneys to act as “officers of the court,” an expectation anti-adversarial applied to lawyering and unrealistic applied to lawyerly voting.
Another arrangement making the self-regulation issue murky is that the system applies self-regulation to just those decisions where the Bar is least capable. Attorneys avidly self-regulate through bar associations when they can allege the embezzlement of client funds or other crimes, but the state bars lack the resources to investigate criminal misconduct. To accommodate this deficiency, the ethical codes impose draconian penalties for easily established but merely technical misconduct. Thus, the California Supreme Court holds that any momentary shortfall in an attorney trust account is disciplinable misappropriation of client funds.
The inapplicability of self-regulation’s rationale further exposes the stupidity of having the state bars enforce rules against criminal misconduct. The rationale is that the regulation of lawyers is inherently a task best accomplished when its enforcers benefit from professional discernment:
Lawyers and other specialized professions possess complex and esoteric knowledge and skills; therefore, they should be allowed to self-regulate because they alone have the specialized knowledge to understand the unique nature of their profession's problems and hence, to apply effective cures. Outside interference in this process, commentators argue, would undermine the profession's public orientation and subject it to regulation that is harmful to both the profession and the public. (William T. Gallagher, Ideologies of Professionalism and the Politics of Self-Regulation in the California State Bar (1995) 22 Pepp. L.Rev 485, 489.)
State-bar regulation is best suited for matters involving incompetent lawyering—where legal insight is essential and the mass of practicing attorneys can and should provide it. The supreme courts and their delegates have a conflicting interest in obtaining obedience to judges or, in other ways, making life easier for judges. Regulation of service quality overlaps territory covered by malpractice actions, but regulation of quality is much broader than the scope of civil lawsuits. To prove professional negligence, a client must prove harm, whereas proving incompetent service should suffice for discipline, even if harm isn't proven. Why wait for clients to suffer harm?
The common misfortune of incompetent attorney performance is what makes the public distrust self-regulation. If so, the bars’ focus on criminal misconduct is misdirected, not only because criminal investigation doesn't suit the bars, but also because service-quality regulation is the paramount public need. But then, who set the present course? Self-regulation fails because it contradicts attorney self-interest: attorneys don’t run for the Board of Governors promising they will regulate for competence. Rather, the bar associations address competence primarily by irrelevant MCLE requirements, revenue enhancing for some attorneys and nonthreatening (if irritating) to the others.
The need for lay competition
Whereas lawyers are exclusively qualified to assess the competence of lawyering, their professional associations lack the incentives to apply that competence. The bar associations enjoy a near monopoly on the practice of law—the exception is when litigants represent themselves, usually ineffectively. The bars’ near-monopoly on legal practice eventuates in ethical codes where guild interest overshadows public interest and the redundant prosecution of criminals diverts attention from attorney incompetence.
Attorney self-regulation is a worthy goal, but for it to work, the legal profession must be stripped of its monopoly on legal representation. Competition by lay advocates can provide the incentive for attorney associations to monitor performance. The state should regulate the use of the title “attorney-at-law,” without enforcing a limitation on who practices law—a limitation disagreeing with democratic principles. This would be a significant change to our legal system, but—if the profession is to regulate itself—the change is indispensable.