About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

2008 J. Prof. Law. Symp. Issues 161 (2008)
How Things Have Changed: Contrasting the Regulatory Environments of the Canons and the Model Rules

handle is hein.journals/profeslwr2008 and id is 165 raw text is: How Things Have Changed: Contrasting the Regulatory Environments of the Canons and the Model Rules Ted Schneyer* Introduction The Model Rules of Professional Conduct and the Canons of Professional Eth- ics bear a family resemblance but the two codes were born into different worlds. Since the ABA adopted the Canons in 1908, lawyers' work and workplaces, the structure of the organized bar, and the regulation of law practice have all changed enormously. This essay focuses on regulatory change. Taking account of changes in each of these domains, I hope to sharpen our sense of the place of the Model Rules (and the ABA itself) in today's complex and dynamic regulatory world, first by contrasting it with the Canons' place in the inchoate regulatory world of the early 1900s,1 and then by suggesting some ways in which the Model Rules and comprehensive legal ethics codes in general are arguably becoming less important from a regulatory standpoint. In my terms, regulating law practice means creating norms to govern lawyers' conduct, interpreting those norms, and promoting compliance (by enforcement or otherwise). The regulatory framework consists of the institutions that perform these tasks, and the processes and techniques they use in doing so.2 Unlike the regulatory framework that existed in the early 1900s, today's framework consists of two robust sectors, one internal, the other external. In internal regulation (often called professional self-regulation), the bar, in tandem with the states' *Milton 0. Riepe Professor of Law, James E. Rogers College of Law, The University of Arizona. 1. Focusing on the Canons and Model Rules limits the aspects of lawyer regulation I will dis- cuss. For example, it excludes the regulation of bar admissions. Also, although the Model Code of Professional Responsibility, adopted by the ABA in 1969, is a vital bridge between the Canons and Model Rules, the Code gets short shrift here in order to emphasize the contrasting regulatory environ- ments at the beginning and end of the twentieth century. The fact that the ABA adopted the Model Rules only thirteen years after the Model Code, which was adopted more than sixty years after the Canons, suggests that the pace of change in the regulation of law practice has been accelerating. 2. For some purposes, it is helpful to think of the regulatory framework in an extended sense in which the institutions may be public or private, and the relevant processes formal or informal. Malpractice litigation is public and formal, while a malpractice insurer's audit of a law firm is nei- ther, but both promote compliance with the professional standard of care and are regulatory in that extended sense. See Anthony E. Davis, Professional Liability Insurers as Regulators of Law Practice, 65 FORDHAM L. REV. 209 (1996). The legal services market is also regulatory insofar as it gives lawyers incentives to behave properly. But this essay focuses chiefly on regulation in its narrower and more conventional sense.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most