Legal Services Regulation at the Crossroads

Legal Services Regulation at the Crossroads

Justitia’s Legions

Noel Semple

Through a comparative study of English-speaking jurisdictions, this book seeks to illuminate the policy choices involved in legal services regulation as well as the important consequences of those choices. Regulation can protect the interests of clients and the public, and reinforce the rule of law. On the other hand, legal services regulation can also undermine access to justice and suppress innovation, while failing to accomplish any of its lofty ambitions. The book seeks a path forward to increasing regulation's benefits and reducing its burdens for clients and for the public. It proposes a client-centric approach to enhance access to justice and service quality, while revitalizing legal professionalism, self-regulation, and independence.

Chapter 8: Independence

Noel Semple

Subjects: law - academic, law of obligations


Chapter 7 described and evaluated the professionalism public interest theory which supports traditional self-regulation of various expert occupations. This chapter focuses on the lawyer independence public interest theory, which is the second pillar used to support the professionalist-independent tradition of legal services regulation. Independence is a lawyer-specific, as opposed to pan-professional, value, and one whose importance in lawyer regulation discourse has been recognized by scholars. The goal in this chapter is to disentangle and assess three claims which are bound up in the independence public interest theory. The independence core value claims that lawyers must be: (i) independent from the state and its agents; (ii) independent from non-lawyers other than their clients; and (iii) independent from their own firms, as individually accountable moral agents. (The idea that lawyers must have independence from their own clients occasionally surfaces in legal-ethical discourse,but it is not part of the public interest theory supporting professionalist-independent legal services regulation.) Some but not all of the independence theory withstands scrutiny. Regulatory independence from the state does plausibly foster lawyers' zealous advocacy against it. However, the status quo regulatory insulation of lawyers from businesspeople is too selective to be convincing. Finally, the valorization of each individual lawyer as an independent moral agent is a worthy part of the regulatory tradition, but it does not seem to be incompatible with firm-based regulation for ethical infrastructure.

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