The ABA Commission on the Future of Legal Services has issued its final Resolution & Report: Regulatory Objectives. This Resolution is scheduled for a vote at the February 2016 San Diego ABA Midyear Meeting. The draft objectives can provide the basis for a useful discussion in Chapters 2 and 9 regarding the purpose of regulation. (The ABA/BNA Lawyers’ Manual article about these regulatory objectives is available here.)
Full disclosure: I am on record as supporting regulatory objectives. As I explained in my Oct. 30, 2015 comment letter, I believe that regardless of what one thinks about recent market and regulatory developments, it is useful to have regulatory objectives:
My final comment is that it is important for the Commission and ABA members not to allow controversies about regulatory developments in the United States or elsewhere to derail the discussion about Model Regulatory Objectives. Many of the recent lawyer regulatory developments have been quite controversial. As I have noted in several articles, one way to think about both market and lawyer regulation developments is that they present issues regarding the “who-what-when-where-why-and-how” of lawyer regulation. For example, the North Carolina Dental Board case and the 2007 UK Legal Services Act raise issues about who it is that should regulate lawyers; LLLT, entity regulation, and ABS developments raise issues about what it is that should be regulated; the UK’s outcomes focused regulation raises questions about how regulation should occur. While these who-what-when-where-why-and-how issues have become intertwined in particular jurisdictions, it is important for U.S. jurisdictions to recognize that these issues are separable.
I believe that it is exceedingly important for a jurisdiction to ask itself the “why” question – why does the jurisdiction regulate lawyers and what it is trying to accomplish? I don’t think that asking the question of why a jurisdiction regulates presupposes a particular answer to one of the controversial “who-what-when-where-or-how” lawyer regulation issues. Moreover, failing to ask the “why do we regulate?” question doesn’t mean that the difficult issues are going to go away. Whether one likes it or not, there are market and regulatory developments in the United States and elsewhere that will be cited during regulatory debates. If a regulator can say what it is trying to achieve, its response to a particular issue – whatever that response is – should be more thoughtful and should have more credibility. It seems to me that this is in everyone’s interest.