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Journal of the Institute for the Study of Legal Ethics

Publication Date

10-1-1996

Introduction

The Supreme Court recently upheld the State of Florida's 30-day prohibition on direct-mail solicitation of accident victims by lawyers. By that decision, the Court simultaneously endorsed junk science and provided the green light long-sought by proponents more interested in the illusion of lawyer disciplinary reform than measurable attainment of its benefits for the public. The decision ostensibly involved only a judicial nod of approval for one state's attempt to combat an allegedly growing public dissatisfaction with the image of lawyers. It will more likely have broader ramifications. Under the guise of enhancing lawyer professionalism and lawyers' public image, expect similar illusory reforms to spur states to still greater experimentation with regulations that ultimately provide no measurable gains for either the public or the profession.

My purpose here is to question the wisdom of the drift toward illusory lawyer disciplinary reform. I begin with some diagnoses of the legal professions' current fascination with what I describe as narcissistic lawyer disciplinary reform measures, viewing the approach as largely traceable to the profession's self-indulgent willingness to do almost anything to promote the appearance of professional self-regulation. However, the willingness to appear to self-regulate while placing few, if any, meaningful limits on lawyer conduct is rooted in yet another professional failing-an unwillingness to understand that as regards public perceptions, any regulation of lawyers by lawyers will, at best, be viewed with suspicion and less sympathetically as detrimental.

I turn in Part III, therefore, to an examination of the limits of illusory lawyer disciplinary reform and urge that, despite diagnoses using the rhetoric of reform-the preferred therapy is to do nothing. In short, because much of what is currently proposed as lawyer regulatory reform (or the reassertion of professional values) is flawed in theory (or in likely application) all concerned-the public, the courts, and the professionwill be better off over the next twenty-four months under a moratorium on reform than under any likely future reform proposal.

In this regard, I wish, first, to emphasize a distinction and then to make an observation. The distinction I urge is that neither the Report of the ABA Commission on Evaluation of Disciplinary Enforcement, popularly known as the McKay Report, nor recommended changes that have come about because of it are part of my call for a two-year moratorium on new lawyer disciplinary reform proposals. The McKay Report, which the ABA House of Delegates endorsed at its February 1992 Midyear Meeting, has proven to be precisely the catalytic agent for reform discussions across the nation that proponents predicted. Its impact has not been illusory lawyer disciplinary reform, but real reform. It represents an exhaustive three-year study by a multi-partisan national panel of disciplinary experts (including lawyers, judges, academicians, and public representatives). Of equal importance, the Commission conducted many public hearings, and spawned inter- and intra jurisdictional debates about the purpose and means of systemic lawyer disciplinary reform. The breadth and depth of these considerations contrast sharply with illusory reform measures-efforts that can generally be characterized as parochial in sponsorship, biased toward the legal profession in outlook, and ultimately costly to the public interest.

The relevant observation, then, is with respect to Justice Kennedy's dissent, in Went For It, Inc. v. Florida. Justice Kennedy forthrightly described the symptoms of illusory disciplinary reform-parochialism, self-dealing, and economic overreaching:

[T]he Court now orders a major retreat from the constitutional guarantees for commercial speech in order to shield its own profession from public criticism. Obscuring the financial aspect of the legal profession from public discussion through direct mail solicitation, at the expense of the least sophisticated members of society, is not a laudable constitutional goal. There is no authority for the proposition that the Constitution permits the State to promote the public image of the legal profession by suppressing information about the profession's business aspects. If public respect for the profession erodes because solicitation distorts the idea of the law as most lawyers see it, it must be remembered that real progress begins with more rational speech, not less.... The guiding principle, however, is that full and rational discussion furthers sound regulation and necessary reform. The image of the profession cannot be enhanced without improving the substance of its practice.

Like Justice Kennedy, we must be leery of so-called reforms that cannot be divorced from the self-interested concerns of their proponents. Pause is required for reflection when proponents cannot see the contradiction inherent in initiatives to promote greater public respect for lawyers by depriving the public of information because the provision of such infor- mation might cause some segment of the public to think less of the legal profession. The moral compass of those who would justify such expediency is seriously out of kilter. By such logic, they might also persuade themselves of the need to eliminate lawyer discipline proceedings altogether, since such proceedings simply confirm the public's worst fears about lawyers.

The continuing preoccupation with illusory disciplinary reform represents a sad state of affairs, but the legal profession did not arrive at this stage through sheer happenstance. The tragedy, moreover, is that even now many do not recognize that the world of the lawyer disciplinary system that fostered and allowed rationalization of illusory disciplinary reform is today no more than an artifact. In its place, is now emerging the lawyer regulatory system. Having evolved from the lawyer disciplinary system, however, Went For It, Inc. makes clear that, vestigial organs remain. Periodically, we will see atavistic lurching, suggesting that deep within the professional physiology lies the gene of an attitude that will be with us for some time. Thus, as surprising as may be the suggestion that the means for addressing lawyer ethics today ought to be those that controlled in the nineteen fifties and sixties, there will continue to be lawyers, judges, and members of the public who urge just that." Part II, a pathography, examines the demise of the lawyer disciplinary system and argues that it expired from competing social, economic and political concerns.

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