Around the globe regulators are rethinking the scope of their mandates and responsibilities. They are assuming more expansive roles rather than limiting their efforts to disciplining lawyers after misconduct occurs. This Article examines such regulatory initiatives in three areas. First, it discusses developments related to proactive management-based programs in which regulators partner with lawyers who self-assess their firms’ management systems. Data reveal that such assessments help lawyers avoid problems through developing their firms’ ethical infrastructure. When misconduct occurs, injured persons often seek monetary redress. These persons may not be able to obtain recovery unless they have suffered substantial damages to support a contingency fee lawyer pursuing legal malpractice claims. The Article considers how two jurisdictions now provide injured persons an alter-native avenue for seeking monetary recovery. The third category of regulatory initiatives deal with the serious problem of sexual harassment in the legal profession. Finally, the survey of regulatory programs reveals how U.S. regulators can learn from the systematic manner in which regulators in other countries study proposed changes and collaborate with other stake-holders in examining and designing new programs to improve the delivery of legal services, advance public protection, and promote the safety and diversity of lawyer workplaces.
Fortney, Susan Saab, Keeping Lawyers’ Houses Clean: Global Innovations to Advance Public Protection and the Integrity of the Legal Profession (September 9, 2020). Georgetown Journal of Legal Ethics, Vol. 33, pp. 891-930, 2020, Texas A&M University School of Law Legal Studies Research Paper No. 20-26, Available at SSRN: https://ssrn.com/abstract=3689907
On the 15th July, the American Bar Association Standing Committee on Ethics and Professional Responsibility released guidance that expands on a model rule that covers a lawyer’s conduct related to harassment and discrimination.
ABA Formal Ethics Opinion 493 outlines how ABA Model Rule of Professional Conduct 8.4(g) addresses actions by a lawyer beyond the courtroom and the context of client representation. This could include operating an office or behaviour at bar association or other business and social events when they are related to the practice of law.
The rule makes it professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination based on various categories, including sex, race, religion, sexual orientation and gender identity. The rule is broader than federal anti-discrimination laws because it also covers conduct that is not severe or pervasive, a standard often utilized for employment discrimination.
The formal opinion notes that most free speech is protected, but the rule is violated by harmful conduct, which “will often be intentional and typically targeted at a particular individual or group of individuals, such as directing a racist or sexist epithet towards others or engaging in unwelcome, nonconsensual physical conduct of a sexual nature.” It said the rule is “critical to maintaining the public’s confidence in the impartiality of the legal system and its trust in the legal profession as a whole.”
Read the formal opinion and the model rule, or read the ABA’s statement on the new guidance.
In February 2016 the Victorian Legal Service Board and Commissioner entered into a research partnership with the University of Melbourne. The project was designed to help identify risk patterns and predict areas of concern within the Victorian profession. The study focused on 10 years of regulatory data on complaints (2005 to 2015) and looked at lawyer vulnerabilities and misconduct.
In April this year, lead researcher Dr Marie Bismark, published the results of that study in the International Journal of the Legal Profession.
The research paper ‘Vulnerability to legal misconduct: a profile of problem lawyers’ is now available.
Read the Board’s statement.