Regulation of the Legal Profession in the 21st Century: Should Professional Regulation Favor Social Policy over Client Protection? 11-16-2013

Summary: In 1990, the Supreme Court unanimously held that an integrated state bar association, which all lawyers licensed in a state must join, could not use the compulsory dues paid by its members to pursue political or ideological activities unrelated to regulating the legal profession or improving the legal system. Keller v. State Bar of California, 496 U.S. 1 (1990). The Court explained, “[T]he extreme ends of the spectrum are clear: Compulsory dues may not be extended to endorse or advance a gun control or nuclear weapons freeze initiative; at the other end of the spectrum petitioners have no valid constitutional objection to their compulsory dues being spent for activities connected to disciplining members of the Bar or proposing ethical codes for the profession.” Id., at 15-16. -- In the nearly 25 years since the Court decided Keller, the entities empowered to promulgate ethical rules binding on the lawyers practicing in a state have imposed a variety of regulations, some of which are more closely and clearly related to the regulation of the legal profession than others. Requirements like continuing legal education and contributions to client security funds are generally seen to fall within the scope of permissible regulation. The imposition of mandatory diversity training in Minnesota and a requirement that law students perform a specified number of hours of pro bono work as a condition to their becoming licensed to practice in New York look different. -- Should state regulation of the bar be limited to imposing rules whose purpose is the protection of client interests? Or, can the regulators impose rules designed to make lawyers “better” people in the belief that “better” people will better serve their clients? How far can the organized bar go in “proposing ethical codes for the profession?” To what extent do programs like mandatory diversity training and requiring law students to perform a specified number of pro bono hours serve the interests of clients? -- The Professional Responsibility & Legal Education Practice Group hosted this panel on "Regulation of the Legal Profession in the 21st Century: Should Professional Regulation Favor Social Policy over Client Protection?" on Saturday, November 16, during the 2013 National Lawyers Convention. -- Featuring: Mr. Scott Johnson, Co-Founder and Contributor, Power Line Blog; Mrs. Margaret A. Little, Partner, Little and Little and Director, Pro Bono Center, The Federalist Society; Prof. Thomas D. Morgan, Oppenheim Professor of Antitrust and Trade Regulation Law, The George Washington University Law School; and Prof. Alan B. Morrison, Lerner Family Associate Dean for Public Interest/Public Service, The George Washington University Law School. Moderator: Hon. David R. Stras, Associate Justice, Minnesota Supreme Court. Introduction: Mr. Jack Park Jr., Of Counsel, Strickland Brockington Lewis LLP.