How to Make Rules for Lawyers: The Professional Responsibility of the Legal Profession

When considering the professional responsibilities of American lawyers, two questions often arise: (1) whether a particular rule strikes the right balance among the multiple interests it purports to reconcile and (2) whether in a particular circumstance a lawyer\u27s or law firm\u27s behavior complied with the governing rules. This article explores a third question. What is the responsibility of the profession itself when, through its various institutions and especially bar associations, it asks courts, lawmakers, or agencies to adopt particular rules governing the conduct of lawyers? Rather than exploring the discussing the conduct of individual lawyers or the correctness of any particular rule this Article concerns the professional responsibility of the legal profession itself and suggests how the work of devising the rules might be improved Addressing the rules the legal profession should follow when drafting the rules it will propose for itself represents a practical contribution to the literature. The bar can do a better job. Improving the intellectual quality of arguments regarding suggested rules, placing an increased emphasis on empirical data, giving attention to the burden of proof, diversifying ABA committees to include non-lawyers, circulating proposals to non-lawyers and mainstream commentators, and opening the House of Delegates listserv would allow the profession to credibly fulfill its public responsibility to the courts and the system of justice. The ABA should institute a permanent Committee on the Future of the Profession. In addition to facilitating empirical research, such a committee should explore the effect of virtual presence on the traditional geo-centric basis for licensing lawyers, study licensing law workers to perform certain tasks for which a traditional legal education should not be required, study and make recommendations for the regulation of companies that generate online legal documents for customers, and review the governance procedures that the Association uses when it proposes amendments to the Model Rules or to court rules or legislation whose focus is the conduct of lawyers