ICLR 2017 Panel: Separating out regulatory and representational work


Separating out regulatory and representational work: Where do the boundaries lie?
Changing regulatory structures: How to re-engineer existing regulatory structures into a new system?

Facilitator: Elizabeth Rindskopf Parker, Executive Director (2015-2017) The State Bar of California

Discussion points

1. Framing

  • Are regulatory and representational organizations fundamentally different in their mission, roles and responsibilities? Can they co-exist within one organization or are both better in being in separate organizations?
  • Is it accurate to say that regulatory work provides public protection and thus serves the public, but representational work principally serves the profession? 
  • What functions belong to each?
  • Consider the attached chart based on the current structure of the State Bar of California: which functions are regulatory and which are representational?
  • If a Bar organization were to be ‘de-unified’ where would the line be drawn?

2. Discussion Questions

a) Is there an inherent conflict between the organizational roles, missions and governing structures of regulatory and representational work or is there a way to harmonize them? If an organization supports two different roles, which will be the more important?

b) As a practical matter, can regulatory roles (i.e. licensing, regulation and discipline) be structured to avoid an actual conflict between the interests of the public and those of the profession? Can regulatory functions be structured so that they are protected from influence by members of the profession? Does it help if regulatory functions are managed by paid professionals, rather than volunteers drawn from the profession?

c) Even if such structures are employed, will they be sufficient to eliminate the appearance of a conflict when members of a profession are in charge of regulatory functions?

d) Will different management approaches and policies be needed in the operation of the regulatory and representational functions, to achieve the greatest success for each? Are there practical problems if organizations operate with two different systems?

  1. A regulatory organization which functions like a governmental entity: Spending limitations so that only public protections is supported; Actions limited to specific legal and regulatory authorization.
  2. A representational organization which functions like a private associational entity: ability to spend on member benefits and entertainment without regard to public protection; and a focus on member service and support.

e) What can be done to manage or eliminate this conflict in practical terms? f) Which of these two roles predominates in your jurisdiction? g) What things can help to define the definition, role and responsibility of regulatory and representational organizations?

  • Statutory objectives / role requirements Professional body constitutional clauses?
  • Codes of Conduct?
  • Strategic plans?
  • Executive / political imperatives?
  • Other (more or less clear) factors?

3. Acting: How can existing regulatory structures be converted into a new system?

a) Who are the relevant stakeholders who must be involved?  Governmental bodies: court and legislature  Members of the profession  The public served

b) What process should be used?

  • Externally imposed
  • Internally developed

c) What are the issues and concerns to consider?

  • If no separation, how to define, codify and implement the distinct roles of representation and regulation
  • If separation of representation and regulation functions is to occur: the need to create new entities for each o the form and structure of each; division of assets and assignment of personnel;  the formal decision process to be employed.
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