What should a modern legal service regulator look like? In some jurisdictions, like England and Wales, this question has resulted in dramatic reforms, such as taking the power of self-regulation away from lawyers. In contrast, much of the regulatory change in North America has involved relatively low-hanging fruit. Some new duties have been incorporated into codes of conducts, some economic restrictions have been lifted, and certain processes have been professionalized. There hasn’t been, however, any radical change.
For many years, the North American legal profession has defended this regulatory stasis with relatively simple appeals to broad concepts such as the “independence of the bar,” “the public interest,” and “professionalism.” In her recent article, Evidence-Based Lawyer Regulation, Elizabeth Chambliss argues that this approach is no longer sustainable and that “the profession’s authority over the regulation of legal services increasingly will require a commitment to evidence-based regulation.” In other words, if the legal profession wants to introduce—or even maintain—regulatory policies, it must offer convincing empirical data in support of such policies rather than simply lean on well-worn rhetoric.
In making her case, Chambliss points to two events that have created pressure for evidence-based lawyer regulation in the United States: (1) the 2015 decision of the Supreme Court in North Carolina Board of Dental Examiners v. Federal Trade Commission, and (2) the American Bar Association’s (ABA) 2016 adoption of Model Regulatory Objectives for the Delivery of Legal Services.
The N.C. Dental case did not directly involve lawyers or bar authorities; it was a dispute over whether non-dentists could perform teeth whitening. Nonetheless, N.C. Dental’s potential impact on the regulation of legal services was clear from the get-go, given the case’s engagement with how the state-action immunity doctrine applies to a professional regulator facing an antitrust challenge. In N.C. Dental, the Court held, inter alia, that state dental board, although statutorily defined as an “agency of the state,” was not entitled to state-action immunity due to the fact that the board was controlled by active market participants and did not receive adequate supervision. Chambliss notes that, following N.C. Dental, bar committees will have to demonstrate that their regulatory activities are subject to “active supervision” by the state (i.e. state supreme courts). She further observes that “most commentators read N.C. Dental as tightening the standard for ‘active supervision’ and signaling the need to produce a record of substantive, evidence-based review.” At the end of this section of the article, Chambliss concludes:
[N.C. Dental] is likely to reopen questions about the basis and scope of state courts’ inherent powers to regulate the practice of law. From a political standpoint, the organized profession should aim to get ahead of these questions, by making a credible commitment to evidence-based regulation.
The ABA’s 2016 adoption of Model Regulatory Objectives also, in Chambliss’s view, “represents an effort to raise the standard of judicial review of professional self-regulation.”1 She notes that “[r]egulatory objectives, by their very nature, create a framework for empirical assessment” and that “by urging state supreme courts to be guided by regulatory objectives, the ABA is effectively urging courts to be guided by evidence; that is, by empirical review.”
In short, Chambliss identifies the N.C. Dental decision and the ABA’s adoption of Model Regulatory Objectives as two events that, together, have created a tipping point for American lawyer self-regulation and ushered in a new era where the old, largely rhetorical, defences of the bar’s monopoly will no longer suffice. Chambliss is careful to contextualize these two events within a broader background of mounting “economic and political incentives to invest in evidence-based policy-making.” Such incentives, she argues, stem from the growing successes of some alternative legal services providers and an “increasingly organized political challenge” from groups concerned with access to justice.
It is within this milieu that Chambliss presents her call to action: “The bar, collectively,…[needs to] signal a normative commitment to evidence-based policy-making and build the profession’s capacity to contribute to relevant research.” On the latter point, the article provides a helpful summary of existing independent empirical research that has challenged the premises of the bar’s historic defenses regarding the need for a lawyer monopoly over the delivery of legal services. The article then ends by providing specific strategies that can be used to institutionalize evidence-based self-regulation. Chambliss considers, in turn, possible approaches for state supreme courts, law schools, and bar associations. The strategies presented are diverse, ranging from proposed changes to the professional responsibility curriculum in law schools to ABA investment “in the development of a proactive research agenda guided by professional regulatory objectives.”
In recording a precise moment in the history of the regulation of the American legal profession and proposing steps forward, Chambliss contributes to both legal profession scholarship and to those charged with the practical job of regulating the American legal profession.2 For readers outside the United States, this article offers an accessible primer on the challenges that the American legal profession is currently facing in retaining its ability to self-regulate and its options going forward.
The case set out in the article does raises some additional questions that would be interesting for Chambliss or others to explore in future work. What, for example, are we looking at evidence for? It is helpful to have regulatory objectives, such as the protection of the public interest, but the boundaries and meanings of these objectives are not always self-evident.
Lively and sometimes ferocious debates have recently erupted in Canada regarding the meaning of, and obligations that flow from, law society mandates to govern in the public interest. Different perspectives on public interest mandates were a significant part of the public debate and judicial analysis on the question of whether Canadian law societies should accredit what was described in a national newspaper as the country’s first “gay free” law school, due to a required pledge which includes abstention from “sexual intimacy that violates the sacredness of marriage between a man and a woman” (for more on this case, see here). Divergent perspectives on what the public interest requires were also front and centre in recent debates over whether the Law Society of Ontario should proceed with an initiative requiring the province’s lawyers and paralegals to create and abide by an individual statement of principles that acknowledges their obligation to promote equality, diversity, and inclusion (for more see, here).
Requiring evidence for lawyer regulation is a good idea but doesn’t remove more fundamental questions about what, exactly, a modern regulator of lawyers should be doing or even more pragmatic questions of what evidence is meaningful in any given situation. On the latter point, I note that Professor Laurel Terry has observed that, as we begin to think of legal services being provided by legal service providers as opposed to simply lawyers, “it [is] much more likely that lawyer regulations will be the subject of benchmarking not only across national borders, but across professions.”
In writing Evidence-Based Lawyer Regulation, Chambliss challenges the American legal profession to create and support modern, sophisticated lawyer regulators. If the fundamental structure of the current self-regulatory system is to continue, this challenge must be taken up whole-heartedly. Embracing evidence-based regulation is a first essential step, but it is only the beginning of what will surely be an interesting yet sometimes tumultuous journey.
- In its resolution dated February 2016, ABA adopted the following ten Model Regulatory Objectives for the Provision of Legal Services: 1) Protection of the public; 2) Advancement of the administration of justice and the rule of law; 3) Meaningful access to justice and information about the law, legal issues, and the civil and criminal justice systems; 4) Transparency regarding the nature and scope of legal services to be provided, the credentials of those who provide them, and the availability of regulatory protections; 5) Delivery of affordable and accessible legal services; 6) Efficient, competent, and ethical delivery of legal services; 7) Protection of privileged and confidential information; 8) Independence of professional judgment; 9) Accessible civil remedies for negligence and breach of other duties owed, and disciplinary sanctions for misconduct; and 10) Diversity and inclusion among legal services providers and freedom from discrimination for those receiving legal services and in the justice system. In the resolution the ABA “urge[d] that each state’s highest court, and those of each territory and tribe, be guided by the ABA Model Regulatory Objectives for the Provision of Legal Services when they assess the court’s existing regulatory framework and any other regulations they may choose to develop concerning non-traditional legal service providers.”
- Indeed, this article seems particularly prescient given the Utah Supreme Court’s recent endorsement of its working group’s recommendation to set up a new structure for the regulation of legal services that includes the creation of a new regulatory body that will, among other things, assess new modes of legal service delivery and which “will be guided by this primary question: What is the evidence of risk, if any, that this action will create in the consumer market for legal services?” (For more information on this development, see here and here).