Evidence-based promulgation: reconsidering the rulemaking process for rules of professional conduct

Much like the indomitable Pippi Longstocking, the legal profession has succeeded for decades in asserting its right to self-regulate. Judges play a key role in this regulatory regime, serving as both rulemakers and enforcers. Indeed, prompted by the efforts of the organized bar, the judiciary claims the inherent—and exclusive—right to regulate the practice of law on the basis of the separation of powers doctrine. This claimed right includes establishing the boundaries of what constitutes the practice of law, thus effectively maintaining the profession’s monopoly over the provision of legal services. Yet this arrangement is under attack on several fronts. Lawyers increasingly face regulation from other quarters.

Much of this regulation is federal, occurring through the application of substantive federal law and the regulation of lawyers appearing before certain federal agencies. Indeed, the multijurisdictional nature of modern practice has led to calls to move beyond this piecemeal encroachment in favor of the federalization of professional regulation. However, there are also other sources of authority that shape lawyers’ behavior, including malpractice insurers, title insurers, and professional organizations. In addition, international jurisdictions also impose obligations on lawyers and exert further pressure on the existing U.S.
regulatory system through the adoption of innovative regulations.

Poppe, E. S. T. (2021). Evidence-Based Promulgation: Reconsidering the Rulemaking Process for Rules of Professional Conduct. FORDHAM L. REV.89, 1275-1278.

Read the full article here.

Brought to you by ICLR.