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The Myth of Self-Regulation

By Fred C. Zacharias. Full text here.

The American legal profession is highly regulated. Lawyers are governed by state-enforced professional codes, supervised by courts, and constrained by civil liability rules, civil and criminal statutes, and administrative standards. Nevertheless, commentators and various actors in the legal system continue to conceptualize law as a “self-regulated profession.” The Preamble to the recently revised ABA Model Rules of Professional Conduct characterizes the Rules as self-regulation despite the fact that they are intended to be administered by state supreme courts.

This Article argues that the persistent emphasis on lawyer self-regulation misleads courts, code drafters, lawyers, and laypersons alike, with serious ramifications for the development of the law governing lawyers and for everyday legal practice. The Article traces the history of lawyer regulation, explaining why the notion of law as a self-regulated industry developed, when it became archaic, and why it continues to be used. The Article then highlights adverse consequences that arise when various actors—including the co-regulators of the bar, lawyers themselves, and the public—cling to the image that lawyers self-regulate through legal ethics codes. The Article ultimately proposes an amendment to the Model Rules that would eliminate all reference to self-regulation and replace it with a more accurate statement reflecting the modern reality of co-regulation.