Chapter 5: Regulatory failure
Regulation fails when it does not achieve the goals which justified its creation. Advancing the interests of the clients of legal service practitioners is perhaps the most important stated goal of legal services regulators. This chapter will argue that core commitments of the professionalist-independent tradition make it difficult for North American regulators to achieve this goal. There are three essential problems. First, the commitment to imposing a single regulatory regime on all lawyers makes it difficult for regulators to advance the interests of all clients in an era of enormously heterogeneous practice environments. Second, the professionalist-independent tradition's single-minded focus on individual lawyers as ethical agents disregards the powerful influence of ethical infrastructure, or the lack thereof, within firms. Third, self-regulatory governance makes it difficult for regulators to focus on and prioritize the interests of clients when they conflict with those of lawyers. This chapter will consider these three problems in turn. It concludes that while they are not fatal to the professionalist-independent project they do require concerted and creative reforms. The first distinguishing feature of professionalist-independent regulation identified in Chapter 3 is the establishment of a single legal profession, all of whose members are subject to a single regulatory regime. David Wilkins identifies the sense of being a ‘single profession bound together by unique and specialized norms and practices’ as ‘one of the legal profession's most important constitutive beliefs’ in the United States.
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