Should Judges Regulate Lawyers?
Judicial decision-making and performance have long been subject to
scrutiny, from the observation that â€œ[t]he law is what the judge had for
to critical deconstruction of judicial appointments and case law.
Recent scholarship has examined how judges think and make decisions with a
focus on the role of unintentional bias in judicial decision-making.2
of work have helped discredit simplistic assumptions, accounts, and myths about
the judiciary and replace them with a more contemporary and realistic conception
of judicial decision-making and role.3
One such simplistic assumption is that judges should regulate lawyers.
Admittedly, the case for judicial regulation of lawyers seems not only wellgrounded in the history and tradition of the legal profession, but also
straightforward and persuasive. Constitutional law doctrines, such as the
separation of powers and inherent powers of the court, grant judges the power to
promulgate and enforce rules of conduct for the legal profession.4
regulation appears desirable because the judiciary has both a functional
advantage in regulating lawyers (judges are ideally positioned to observe lawyer
* Charles W. Delaney Jr. Associate Professor of Law and Hughes-Ruud Research Professor, University
of Denver Sturm College of Law. I thank Rebecca Aviel, Dmitry Bam, Arthur Best, Richard Devlin, Charlie
Geyh, Bruce Green, Robert Hawley, the Honorable John Irwin, Judy McMorrow, Jim Moliterno, and
participants in the Judicial Ethics and Accountability: At Home and Abroad conference hosted by the
University of the Pacific, McGeorge School of Law in April 2010 for their insightful comments. A special
thanks to Claire Riegelman, and to Diane Burkhardt, Faculty Services Liaison at the Westminster Law Library
at the University of Denver Sturm College of Law, for their outstanding research assistance.
1. The source for this quote, attributed to the Realist movement, seems to be â€œAnonymous.â€ See, e.g., A
DICTIONARY OF LEGAL QUOTATIONS 85 (Simon James & Chantal Stebbings eds., 1987); see also Pamela S.
Karlan, Bringing Compassion Into the Province of Judging: Justice Blackmun and the Outsiders, 71 N.D. L.
REV. 173, 174 n.9 (1995) (tracing the underlying idea to Dickensâ€™ Pickwick Papers).
2. John F. Irwin & Daniel Real, Unconscious Influences on Judicial Decision-Making: The Illusion of
Objectivity, 42 MCGEORGE L. REV. 1 (2010). See generally ANTHONY G. AMSTERDAM & JEROME BRUNER,
MINDING THE LAW (2000); DUNCAN KENNEDY, A CRITIQUE OF ADJUDICATION (FIN DE SIECLE) (1997);
RICHARD A. POSNER, HOW JUDGES THINK (2008).
3. For a compelling critique of the simplistic assumption of judicial independence, see Charles Gardner
Geyh, Judicial Politics, the Rule of Law and the Future of an Ermine Myth (Ind. Legal Studies Research Paper,
Paper No. 165, 2010), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1598454 (on file with
the McGeorge Law Review). Ronald Rotunda recently proposed an intriguing solution to related challenges to
judicial independence: the appointment of an inspector general for the courts. See Ronald D. Rotunda, Judicial
Transparency, Judicial Ethics, and a Judicial Solution: An Inspector General for the Courts, 41 LOY. U. CHI.
L.J. 301 (2010).
4. Throughout this Article the term â€œrules of professional conductâ€ means simply the body of law and
norms regulating the conduct of lawyers, not any particular set of rules such as the American Bar Associationâ€™s
(ABA) Model Rules of Professional Conduct. For a similar definition see Benjamin H. Barton, An Institutional
Analysis of Lawyer Regulation: Who Should Control Lawyer Regulationâ€”Courts, Legislatures, or the Market?,
37 GA. L. REV. 1167, 1169 n.6 (2003).
2010 / Should Judges Regulate Lawyers?
misconduct), and a comparative advantage in regulating lawyers (judges are
experts in fact finding and adjudication and therefore can relatively easily
respond to attorney misconduct).5
Straightforward as it may seem, the authority of judges to regulate lawyers
should not be taken for granted. Rather, this Article argues that judicial
regulation of lawyers should be scrutinized and not be assumed as either
necessary or advantageous. Part II explores the basic elements of judicial
regulation of lawyers: promulgation of rules of professional conduct (including
top-down system-wide rules by statesâ€™ highest courts and ad hoc rules by all
and enforcement of rules (both formally and informally). The rest of this
Article examines the judicial regulation of lawyers in detail. Part III questions
judicial rule promulgation, asserting that while in some contexts the judiciary
under-promulgates and should be more proactive, in others it over-promulgates
rules of conduct for the legal profession. Part IV probes judicial enforcement of
rules concluding that in certain contexts it is ineffective and does not serve the
interests of the legal system. It also outlines a proposal that in some
circumstances will allow trial courts to better enforce rulesâ€”the appointment of
legal ethics magistrates. Finally, Part V identifies additional lines of necessary
inquiry regarding judicial regulation of lawyers.
Any discussion of judicial regulation of lawyers cannot escape the â€œelephant
in the room.â€ The question of whether judges should regulate lawyers involves
more than simple issues of the relative competence and efficiency of the judiciary
vis-Ã -vis other regulators. It entails nothing short of the future of the legal
professionâ€™s prerogative of self-regulation. The legal profession has long invoked
the power of the judiciary to regulate lawyers as a shield against external
regulation of the bar, conveniently framing the debate over self-regulation as a
constitutional inquiry regarding judicial regulation of lawyers and the separation
of powers, and doubts about the efficacy of self-regulation as an assault on the
integrity of the judiciary.7
Arguably, however, the legal profession has vigorously
defended the regulation of lawyers by the judiciary not out of loyalty and
deference to the courts but rather because questioning judicial regulation would
undermine self-regulation by opening the door to external regulation of the
practice of law. Indeed, questioning judicial regulation of lawyers may very well
come with a hefty price tagâ€”hastening the loss of self-regulationâ€”yet the selfinterest of the profession in continuing to self-regulate should not be confused
with disrespect for the judiciary and should not hinder legitimate analysis of the
regulation of lawyers.
5. See infra Part IV.
6. For purposes of this Article, â€œtop-downâ€ rules refer to rules of professional conduct or decisions by
statesâ€™ highest courts that are binding on all lawyers and lower courts within the jurisdiction. â€œAd hocâ€ rules
refer to rules and decisions by courts that may be binding only on lawyers appearing before them, such as local
7. See infra Part III.A.
McGeorge Law Review / Vol. 42
II. THE MEANING OF JUDICIAL REGULATION OF LAWYERS
The question â€œWho should regulate lawyers?â€ is receiving significant
attention. Building on the work of scholars of the professions who criticize the
self-regulatory aspect of professionalism as self-serving,8
encompasses a sophisticated institutional analysis comparing and contrasting the
traditional disciplinary system with liability controls (malpractice lawsuits),
institutional controls (regulation by administrative agencies), legislative controls
(both state and federal), market-based controls (regulation by powerful clients,
insurance companies, and banks), and social norms.9
Two ongoing trends further fuel the discourse. First, there is an ongoing
federalization of legal ethics, brought about by recent promulgation of federal
statutes regulating the conduct of some segments of the legal profession, and
consequently, the increased regulation of lawyers by various federal
administrative agencies.10 The second trend is the rise of institutionalization and
professionalization of risk management procedures as a significant regulatory
force impacting lawyersâ€™ conduct.11 Both trends undermine the status quo of
attorney regulation by supplementing (and in some instances displacing) the
traditional disciplinary apparatus with institutional and market-based regulations,
8. Self-regulation is a constitutive feature of professionalism. See Richard Wasserstrom, Lawyers as
Professionals: Some Moral Issues, 5 HUM. RTS. 1, 4 (1975); TALCOTT PARSONS, The Professions and Social
Structure, in ESSAYS IN SOCIOLOGICAL THEORY, 36â€“40 (1954). By definition, self-regulation means that
lawyers should regulate lawyers. Scholars of the professions have criticized self-regulation as self-serving. See
generally MAGALI SARFATTI LARSON, THE RISE OF PROFESSIONALISM: A SOCIOLOGICAL ANALYSIS (1977).
Legal scholars have similarly criticized self-regulation as a self-serving and exclusionary mechanism intended
to maintain a monopoly over the provision of professional services. See, e.g., RICHARD L. ABEL, AMERICAN
LAWYERS 12 (1989) (â€œ[T]he legal profession has sought to justify the autonomy it enjoys by regulating its own
behavior: promulgating ethical rules, disciplining violations, protecting clients against financial loss, and
ensuring lawyer competence.â€); see also RICHARD A. POSNER, THE PROBLEMATICS OF MORAL AND LEGAL
THEORY 185â€“211 (1999) (joining, from a market-based approach, critical scholars in challenging
professionalism and self-regulation).
9. David Wilkinsâ€™ comparative institutional analysis of professional regulation exploring competing
mechanisms and arenas of regulation is considered the cornerstone of the current discourse. See David B.
Wilkins, Who Should Regulate Lawyers?, 105 HARV. L. REV. 799 (1992). Four years later, an entire symposium
issue revisited Wilkinsâ€™ analysis. Symposium, Institutional Choices in the Regulation of Lawyers 65 FORDHAM
L. REV. 33 (1996).
10. See generally Eli Wald, Federalizing Legal Ethics, Nationalizing Law Practice and the Future of the
American Legal Profession in a Global Age, 48 SAN DIEGO L. REV. (forthcoming 2011) (on file with the
McGeorge Law Review); Daniel R. Coquillette & Judith A. McMorrow, Federalization and Contextualization
of Legal Ethics, 48 SAN DIEGO L. REV. (forthcoming 2011) (on file with the McGeorge Law Review); Fred C.
Zacharias, Understanding Recent Trends in Federal Regulation of Lawyers, 2003 PROF. LAW. 15 (2003); Fred
C. Zacharias, Federalizing Legal Ethics, 73 TEX. L. REV. 335 (1994); Ted Schneyer, Professional Discipline in
2050: A Look Back, 60 FORDHAM L. REV. 125, 125-27 (1991).
11. See generally Anthony V. Alfieri, The Fall of Legal Ethics and the Rise of Risk Management, 94
GEO. L.J. 1909 (2006) (examining the normative implications of the growing embrace of risk management);
Anthony E. Davis, Legal Ethics and Risk Management: Complementary Visions of Lawyer Regulation, 21 GEO.
J. LEGAL ETHICS 95, 96 (2008) (arguing that â€œrisk management enhances individual ethical deliberationâ€);
Stephan Landsman, The Risk of Risk Management, 78 FORDHAM L. REV. 2315 (2010) (critically examining risk
management through the lens of the medical industry).
2010 / Should Judges Regulate Lawyers?
and also by shifting regulatory power from the legal profession to the legislature
and private parties, such as insurance companies.
While the extensive â€œWho should regulate lawyers?â€ literature leaves almost
no stone unturned, the desirability of judicial regulation of lawyers, at least as a
part of a greater regulatory apparatus of the legal profession, has hardly been
questioned.12 Even as a growing body of empirical work suggests that judges do
not effectively regulate lawyers,13 the literature continues to assert that judges can
regulate lawyers (i.e., that judges have the power to regulate lawyers), and that
the judiciary should regulate lawyers.14 Accordingly, the common response to an
assertion that judges do not effectively regulate lawyers is a call for greater
judicial regulation of lawyers.15
Judges are involved in many aspects of the regulation of lawyers. In most
jurisdictions, the entire disciplinary system is premised on rules of professional
conduct promulgated by a stateâ€™s highest court. Rule enforcement is managed by
the delegation of power from a stateâ€™s highest court to a disciplinary authority,
granting judges supervisory power over disciplinary controls.16 Judges exercise
liability controls when presiding over malpractice lawsuits, and institutional
controls when imposing sanctions on lawyers via the contempt power. The
negative aspect of the inherent powers doctrine, pursuant to which courts have
the exclusive power to regulate lawyers,17 grants judges the power to strike down
legislation regulating attorney conduct as unconstitutional, and thus allows the
judiciary to influence legislative controls. Even market-based regulation is
influenced by judicial regulation of lawyers. For example, an informal judicial
12. Notably, the judicial regulation of lawyers has remained largely unchallenged even as judicial
decision-making in general has become increasingly scrutinized. See generally Symposium, Judicial Ethics and
Accountability: At Home and Abroad, 42 MCGEORGE L. REV. 1 (2010).
13. Judith A. McMorrow et al., Judicial Attitudes Toward Confronting Attorney Misconduct: A View
From the Reported Decisions, 32 HOFSTRA L. REV. 1425, 1454 (2004) (â€œBy looking at what judges doâ€”the
sanctions imposedâ€”when confronted with attorney conduct and the language they use in imposing those
sanctions, we see a picture of judges who are not aggressively seeking to regulate the legal profession as a
whole.â€); see also Judith A. McMorrow, The (F)Utility of Rules: Regulating Attorney Conduct in Federal Court
Practice, 58 SMU L. REV. 3, 38 (2005) (â€œThe federal judges appear to embrace what can be called a minimal
encroachment approach to attorney regulation.â€).
14. See, e.g., Jack T. Camp, Thoughts on Professionalism in the Twenty-First Century, 81 TUL. L. REV.
1377, 1392 (2007).
15. See id. (arguing that judges should play a leading role in regulating attorney conduct).
16. In Massachusetts, for example, attorney discipline is administered by the Board of Bar Overseers,
essentially an arm of the Supreme Judicial Court. Board of Overseers, Mass.gov, http://www.mass.gov/obcbbo/
(last visited Sept. 23, 2010) (on file with the McGeorge Law Review). In California, attorney discipline is a
function reserved to the Supreme Court and exercised through the State Bar, a legislatively created public
corporation that serves as the administrative arm of the Supreme Court and is answerable to the Court. See
Hustedt v. Workers Compensation Appeals Board, 30 Cal. 3d 329 (1981); In Re Attorney Discipline System, 19
Cal. 4th 582, 586 (1998); see also Barton, supra note 4, at 1173.
17. For a concise, albeit critical, definition of the negative aspect of the inherent powers doctrine, see
Charles W. Wolfram, Lawyer Turf and Lawyer Regulation â€“ the Role of the Inherent powers Doctrine, 12 U.
ARK. L. J. 1, 6-13 (1989).
McGeorge Law Review / Vol. 42
opinion chastising an attorney may have a significant negative impact on the
Because judges are omnipresent in attorney regulation, to question judicial
regulation of lawyers appears to entail questioning the entire apparatus of
attorney regulation. Moreover, questioning judicial regulation of lawyers seems
to be a monumental task, and perhaps even counter-productive because the
justification for judicial regulation of lawyers appears to be straightforwardâ€“
judges are well-positioned to observe and respond to attorney misconduct. To
some, questioning judicial regulation of lawyers amounts to not only challenging
a well-justified core aspect of attorney regulation, but also constitutes heresy.18
In historical context, judicial regulation of lawyers makes ample sense. As
late as the nineteenth century, when the paradigm of law practice was embodied
in the circuit-riding litigator whose practice commonly involved going to the
courthouse, when admission to the practice of law literally meant admission to a
court, and when judges were often the most reliable, if not sole, point of
intersection all lawyers had with government, vesting regulatory power over the
legal profession in the judiciary was â€œsimply inescapable, natural and
inevitable.â€19 Judges not only were best situated to regulate lawyers, they had the
expertise to do so. â€œHistory and tradition,â€ concludes Andrew Kaufman, â€œhave
given the task of regulating lawyersâ€™ conduct largely to the countryâ€™s judiciary.â€20
The practice of law has undergone a significant transformation since. As
Charles Wolfram notes, â€œ[t]he average lawyer no longer spends very much time
in court. In fact, the great majority of lawyers would starve if they had to make
their living out of court appearances. Most lawyers make their money in their
offices,â€21 out of judicial sight, and in ways that increasingly fall outside of
judicial expertise. While it is no doubt convenient and self-serving for the legal
profession to fall back on history and tradition and to characterize attempts to
externally regulate the profession as an unconstitutional usurpation of judicial
power, the evolution and growth of law practice demands close scrutiny of
18. Barton, supra note 4, at 1172. To the extent that questioning judicial regulation of lawyers
constitutes heresy, this Article joins celebrated â€œhereticsâ€ authors Andrew Kaufman and Charles Wolfram in
challenging some aspects of it. See Andrew L. Kaufman, Ethics 2000 â€“ Some Heretical Thoughts, 2001 PROF.
LAW. SYMP. ISSUES 1 (2001) (calling on judges to be more proactive in regulating lawyers and criticizing
courtsâ€™ habit of delegating to the ABA the task of promulgating rules of professional conduct); Wolfram, supra
note 17, at 19-23 (arguing that courts ought to share the power to regulate lawyers with the legislative and
19. Wolfram, supra note 17, at 5.
20. Kaufman, supra note 18, at 4. Of course, it is not history and tradition alone that explain judicial
regulation of lawyers and the dominance of the litigation paradigm in codes of professional conduct. By the
time early codes of conduct were being drafted, the balance was tipping toward office work and away from
litigation. The newly established elite of the legal profession, the office practice attorneys, have always used
their influence to draft codes whose regulation fell most heavily on the â€œrestâ€ of the bar, the â€œundesirableâ€ solo
and small firm practitioners populating the lower spheres of the profession. See ABEL, supra note 8; JEROLD S.
AUERBACH, UNEQUAL JUSTICE: LAWYERS AND SOCIAL CHANGE IN MODERN AMERICA, 25-6 (1976).
21. Wolfram, supra note 17, at 5.
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judicial regulation of lawyers. The rest of this Article, accordingly, studies
judicial regulation of lawyers: first examining judicial promulgation of rules of
professional conduct, and subsequently exploring their enforcement by courts.
Notably, the distinction between promulgating and enforcing rules, while
conceptually clear, is complicated in practice because the two forms of regulation
intertwine. In his influential article, Who Should Regulate Lawyers, David
Wilkins concentrates on regulatory enforcement, assuming away rulepromulgation or the content of the rules.22 This simplifying assumption was
heavily challenged by critics who point out that disputes over rule enforcement
are often a cover for disagreements about rule-promulgation and content.23 In the
context of judicial regulation of lawyers, many understand the two forms of
regulation to be inseparable because the constitutional doctrines that confer upon
courts the authority to regulate lawyers include both the power to promulgate
rules and the power to enforce them. Nonetheless, distinguishing between
promulgation and enforcement is necessary for a proper investigation of the
judicial regulation of lawyers.
III. JUDICIAL PROMULGATION OF RULES OF CONDUCT
Investigating judicial promulgation of the rules of professional conduct
requires addressing three kinds of questions: (1) can judges promulgate rules of
professional conduct (that is, do judges have the power and authority to
promulgate rules for lawyers?); (2) do judges promulgate rules of conduct (that
is, do judges in fact exercise the power to promulgate rules?); and (3) should
judges have the power to promulgate rules of conduct, either exclusively or
alongside other regulators.
A. Can Judges Promulgate Rules of Conduct?
It is beyond dispute that the judiciary has the power to regulate the legal
profession and can both promulgate and enforce rules of conduct. The judicial
power to promulgate rules consists of both authority to promulgate top-down
system-wide rules and the power to promulgate ad hoc rules. In most
22. Wilkins, supra note 9, at 810 (â€œTo isolate this question [of enforcement], it is necessary to assume a
single set of rules that will be interpreted and applied by all enforcement officials. Because the ABAâ€™s Model
Rules of Professional Conduct . . . continue to constitute the most influential sources of professional norms, I
assume that all enforcement officials agree that lawyers can only be sanctioned for conduct prescribed in [this]
23. See, e.g., Ted Schneyer, Legal Process Scholarship and the Regulation of Lawyers, 65 FORDHAM L.
REV. 33, 53-8 (1996); Bruce A. Green, Conflicts of Interest in Litigation: The Judicial Role, 65 FORDHAM L.
REV. 71, 82-3 (1996). Wilkins himself acknowledged that â€œ[c]ontent arguments often underline enforcement
debates,â€ but noted that â€œ[t]his assumption, although obviously exaggerated, is not completely unrealistic,â€
adding that it is not â€œpossible to consider all regulatory tasks simultaneously.â€ Wilkins, supra note 9, at 809,
810 n.36; David B. Wilkins, How Should We Determine Who Should Regulate Lawyers?â€”Managing Conflict
and Context in Professional Regulation, 65 FORDHAM L. REV. 465, 476 (1996).
McGeorge Law Review / Vol. 42
jurisdictions, the stateâ€™s highest court is the â€œultimate arbiter of attorney
regulation and discipline. The source of a supreme courtâ€™s authority is often the
state constitution itself, or otherwise derived from case law,â€24 which means that
the highest court can promulgate on a top-down system-wide basis by putting in
place rules applicable to all lawyers in the jurisdiction. In addition to the statesâ€™
highest courtsâ€™ top-down promulgation power, the power to promulgate rules
â€œhas been well-established to be within the auspices of any state court, including
state trial courtsâ€25 pursuant to the positive aspect of the inherent powers
doctrine.26 This ad hoc authority allows every court to promulgate rules of
conduct applicable to the lawyers who practice before it.27
While the judiciary clearly has the power to promulgate rules of professional
conduct, the extent and limits of its power are somewhat imprecise. It is
noteworthy that while the judiciary sometimes asserts its exclusive power to
promulgate rules of conduct pursuant to the negative aspect of the inherent
powers doctrine,28 the proposition is questionable both in theory and,
increasingly, in practice. State and federal legislatures also claim to have the
power to regulate lawyers, a power they exercise both at the system-wide level
(increasingly so via federal agencies as part of the federalization of legal ethics)29
and at the ad hoc level, often by curbing the inherent authority of courts in
Just as importantly, rhetoric notwithstanding, the judiciary does not attempt
to exercise exclusive power to promulgate rules at either level. At the systemwide level, the highest court authority is often mostly nominal. The statesâ€™
highest courts usually defer not only to the ABAâ€™s Model Rules of Professional
Conduct as the initial and primary source of rule promulgation, but also to a
process of adopting state rules of professional conduct by which lawyers serving
on supreme courtsâ€™ advisory committees draft and submit the rules for the courtsâ€™
approval.31 At the ad hoc level, courts accept legislative constraints on their
24. McMorrow, Judicial Attitudes Toward Confronting Attorney Misconduct: A View From the
Reported Decisions, supra note 13.
26. Wolfram, supra note 17, at 4-6.
27. That all courts can (as in have the power to) promulgate rules of conduct is sometimes obscured by
scholars who focus, in terms of rule-promulgation, on the power of the stateâ€™s highest courtâ€™s to promulgate topdown, system-wide rules to the exclusion of the ad hoc promulgation powers. Barton, supra note 4, at 1173
(studying the former but not the latter).
28. Wolfram, supra note 17, at 6-13.
29. Coquillette & McMorrow, supra note 10.
30. While the U.S. Supreme Court decision in Chambers v. Nasco., 501 U.S. 32 (1991) reaffirmed in
principle the existence of courtsâ€™ inherent powers, states have continued to pass statutes limiting the inherent
powers of the court in particular circumstances. For example, several states have constrained the ability of
courts to invoke their inherent powers to disqualify a district attorney. See generally Eli Wald, Disqualifying a
District Attorney When a Government Witness Was Once the District Attorneyâ€™s Client: The Law Between the
Courts and the State, 85 DENV. U. L. REV. 369 (2007).
31. Kaufman, supra note 18, at 4.
2010 / Should Judges Regulate Lawyers?
inherent powers routinely, even as they continue to assert their exclusive powers
Moreover, multiple sources of rule-promulgation emerge independent of
formal allocation of power. For example, insurance companies, by setting
malpractice insurance premiums and denying coverage, practically have the
power to regulate certain aspects of lawyersâ€™ practice.33 Large-entity clients
exercise power to promulgate rules for lawyers through their in-house legal
departments, which increasingly amount to near micro-managing of legal workâ€”
how many and what lawyers are assigned to particular tasks, how much time to
spend on particular issues, and how much to charge for their work.34 And some
rules are truly self-regulating. For example, lawyersâ€™ growing tendency to
implement risk management policies meant to reduce their liability is practically
regulating both who is represented and how.35
B. Do Judges Promulgate Rules of Conduct?
By and large, the judiciary exercises its power to promulgate rules for the
legal profession. Most state supreme courts exercise the system-wide power to
promulgate top-down rules by adopting rules of professional conduct, although
the exercise of power is often mostly nominal, deferring in substance to the
ABAâ€™s Model Rules of Professional Conduct.36 Of course, the highest courts also
promulgate system-wide rules by deciding cases and announcing liability rules,
such as the doctrines of malpractice and attorney aiding and abetting clientsâ€™
conduct. Many courts also exercise their ad hoc power to announce local rules
applicable to lawyers appearing before them. Indeed, as different courts at
32. Wald, Disqualifying a District Attorney, supra note 30, at 372.
33. See generally Manuel R. Ramos, Legal Malpractice: The Professionâ€™s Dirty Legal Secret, 47 VAND.
L. REV. 1657, 1707-1733 (1994) (requiring mandatory malpractice insurance allows insurers to determine who
practices law); Anthony E. Davis, Professional Liability Insurers as Regulators of Law Practice, 65 FORDHAM
L. REV. 209 (1996) (arguing that insurance is becoming a more formal regulatory tool); see also John P. Sahl,
The Public Hazard of Lawyer Self-Regulation: Learning from Ohioâ€™s Struggle to Reform Its Disciplinary
System, 68 U. CIN. L. REV. 65, 101-102 (1999) (â€œProfessional responsibility experts agree that . . . malpractice
liability will play an increasing role in regulating attorney conduct.â€).
34. See David B. Wilkins, Teams of Rivals? Toward a New Model of the Corporate Attorney-Client
Relationship, 78 FORDHAM L. REV. 2067, 2071 (2010); Robert L. Nelson, Ideology, Practice, and Professional
Autonomy: Social Values and Client Relationships in the Large Law Firm, 37 STAN. L. REV. 503, 505 (1985).
35. Davis, supra note 11, at 100.
36. See A.B.A. CTR. FOR PROF. RESP., LAWYER REGULATION FOR A NEW CENTURY: REPORT OF THE
COMMISSION ON EVALUATION OF DISCIPLINARY ENFORCEMENT 2 (1992) (â€œToday, judicial regulation of
lawyers is a principle firmly established in every state.â€); CHARLES W. WOLFRAM, MODERN LEGAL ETHICS 24
(1986) (noting that state supreme court regulation â€œcovers every aspect of the practice of law, â€˜starting with
admission, ending with disbarment and covering everything in betweenâ€™â€); Eric H. Steele & Raymond T.
Nimmer, Lawyers, Clients, and Professional Regulation, 1976 AM. B. FOUND. RES. J. 919, 921 (1976) (â€œThe
regulation of the legal profession is primarily under the control of state supreme courts.â€).
McGeorge Law Review / Vol. 42
different levels promulgate and adopt different rules, a deep confusion exists with
regard to the content of the rules.37
C. Should Judges Promulgate Rules of Conduct?
As the â€œCan judges promulgate rules of conduct?â€ analysis demonstrates,
judicial power to promulgate consists, in practice, of both a non-exclusive
system-wide power and a non-exclusive ad hoc power. Exploring the desirability
of judicial promulgation of rules of conduct for lawyers thus requires questioning
both types of power.
First, should judges play a role in promulgating top-down, system-wide rules
of conduct? Answering this question requires a comparative institutional
analysis,38 yet two obstacles stand in the way of such inquiry. Constitutional
constraints seem to guarantee the judiciary a role in promulgating rules,39 even if
a comparative analysis established that judges are poor regulators of lawyersâ€™
conduct. Furthermore, conducting an institutional analysisâ€”by comparing the
strengths and weaknesses of the abilities of the judiciary to promulgate rules to
other institutionsâ€™ regulatory skillsâ€”is somewhat hindered by the current lack of
alternative regulators to compare to the judiciary. Indeed, because the judiciary
has for so long dominated the rule promulgating landscape, the comparative
exercise is likely to be limited by constraints imposed by the status quo on legal
imagination.40 Consequently, traditional institutional analysis is likely to explore
only three possibilities for rule promulgation: the judiciary, the legislature, and
de-regulation or market-based â€œpromulgationâ€.41 Moreover, the judicial
alternative is likely to be understood in terms of existing practice realities: de
facto delegation of the power to promulgate rules by the statesâ€™ highest courts to
the ABA and the organized bar. Similarly, the legislative alternative is likely to
be understood in terms of an increasingly polarized legislative body lacking
expertise and subject to the legal professionâ€™s significant lobbying power, as well
37. Fred C. Zacharias & Bruce A. Green, Rationalizing Judicial Regulation of Lawyers, 70 OHIO ST. L.
J. 73, 74 (2009); see also McMorrow, The (F)Utility of Rules, supra note 13, at 5-6, 10-11 (exploring the
inconsistency of rules of ethics in federal courts).
38. Wilkins, supra note 9.
39. Namely, the separation of powers doctrine and the positive aspect of the inherent powers doctrine.
See supra notes 24-26 and accompanying text.
40. On the tense relationship between status quo and legal imagination, see generally Peter Margulies,
Progressive Lawyering and Lost Traditions, 73 TEX. L. REV. 1139 (1995) (arguing that Anthony Kronmanâ€™s
lament in THE LOST LAWYER (1993) over the decline of practical wisdom and his embrace of traditional
lawyering risks suffocating innovation in the practice of law); see also POSNER, supra note 8, 185-211
(asserting that traditional professional mystique stands in the way of effective client service).
41. Notably, in the context of regulation of the legal profession, calls for de-regulating the profession
come not only from conservative thinkers but also from liberal scholars. See, e.g., Posner, supra note 8 (for a
typical conservative, market-based assault on lawyersâ€™ self-regulation); DEBORAH L. RHODE, IN THE INTEREST
OF JUSTICE 143-183 (2003) (for a liberal attack on the legal professionâ€™s monopoly over the provision of legal
2010 / Should Judges Regulate Lawyers?
as the presence (and often dominance) of lawyers in the legislature.42 Finally, the
de-regulation alternative is likely to be discussed in terms of harming vulnerable
clients who will be left unprotected to fend for themselves against powerful
Within these constraints, some legal scholars conclude that a legislative
body, either Congress or state legislatures, would be more likely than the
judiciary to promulgate public-minded rules of professional conduct.44 These
scholars argue that while the judiciary is independent of lobbying efforts by
interest groups, this relative strength vis-Ã -vis legislatures is overstated because,
in the context of regulating the bar, judges have a natural affinity with the
interests and concerns of lawyers,45 are â€œtoo busy, too connected and sympathetic
to lawyers,â€ and are inaccessible to the public.46 And while judges have relevant
subject-matter expertise regarding the conduct of lawyers, they are inexperienced
as legislators.47 Moreover, as the practice of law grows more complex and
specialized, especially in areas which involve little interaction with the judiciary,
judges may not possess the necessary expertise to promulgate rules of conduct.
Persuasive as these arguments may be, there is little reason to exclude
judicial insight from rule-promulgation, especially since judicial promulgation
can be imagined beyond the limits of the existing regulatory apparatus. That is,
while judicial promulgation of rules may be unattractive when it means deference
to the ABA and the organized bar,48 judicial promulgation could take other forms.
The Conference of Chief Justices,49 for example, could draft rules of professional
conduct for the legal profession, either by itself or by appointing a committee and
42. See Russell G. Pearce & Eli Wald, Law Practice as a Morally Responsible Business: Reintegrating
Ethics into Economics and Law (forthcoming 2011) (on file with the McGeorge Law Review); Barton, supra
note 4, at 1216-1231.
43. David B. Wilkins, Everyday Practice is the Troubling Case: Confronting Context in Legal Ethics, in
EVERYDAY PRACTICE AND TROUBLE CASES 68, 70-75 (Sarat, et al. eds. 1998) (cautioning against making
simplistic uniform assumptions about the identities of lawyers and clients); Barton, supra note 4, at 1236. The
legal profession itself opposes de-regulation purportedly on the ground that it would harm clients, but its
opposition is likely, at least in part, explained in terms of its own self interest of maintaining a monopoly over
the provision of legal services. Interestingly, leading scholars of the profession have joined critics from the right
in calling for some de-regulation of the profession. See, e.g., RHODE, supra note 41, at 143-83.
44. Barton, supra note 4, at 1221; Zacharias, Federalizing Legal Ethics, supra note 10, at 376-7.
45. Barton, supra note 4, at 1188-1200.
46. Id. at 1246.
47. Id. at 1204-1207.
48. Id. at 1210; Kaufman, supra note 18, at 4-6.
49. Conference of Chief Justices, http://ccj.ncsc.dni.us/about.html (last visited August 23, 2010) (on file
with the McGeorge Law Review).
The Conference of Chief Justices . . . was founded in 1949 to provide an opportunity for the highest
judicial officers of the states to meet and discuss matters of importance in improving the
administration of justice, rules and methods of procedure, and the organization and operation of state
courts and judicial systems, and to make recommendations and bring about improvements on such
matters. Membership in the Conference of Chief Justices [includes] the highest judicial officer of the
fifty states . . . .
McGeorge Law Review / Vol. 42
relying on its recommendations.50 This would ensure the power of judicial
promulgation is actually exercised by the judiciary and not delegated to the ABA
and the organized bar. Or the Conference of Chief Justices could at least play a
meaningful role in commenting on the ABA suggested Model Rules.51
Alternatively, statesâ€™ highest courts could continue to defer to the ABA as the
initial drafter of the rules (and the organized bar as the primary source of
commenting on the ABA draft), but subsequently play a more active role in
crafting the rulesâ€™ content. Such a proactive supervisory method may yield rules
reflecting a more even-handed approach toward the professionâ€™s various
constituencies by restraining the influence of powerful actors within the
organized bar, such as large law firms. At a minimum, the rules ought to
effectively regulate all segments of the bar and not focus on individual and smallfirm practitioners, especially as a growing number of American lawyers practice
outside of these arenas.52 For example, the rules should include provisions
regulating large law firm practice by adding regulations at the firm-level.53 Also,
the rules ought to reflect the practice realities of all lawyers and not focus almost
exclusively on litigation practices. Most importantly, the rules should do more to
protect the interests of clients and the public. For example, the communications
rule needs to ensure effective communication of information to clients, so that
clients can act on an informed basis by mandating communications of all material
information relating to the attorney-client relationship.54
In other words, whether judges should promulgate top-down, system-wide
rules of conduct depends both on the quality of the rules statesâ€™ highest courts
can produce, and the quality of rules any alternative promulgating bodies can
generate. Such rigorous institutional comparative analysis, however, cannot take
50. Which, if then adopted by each court within its jurisdiction, would have the desirable effect of
introducing uniformity across the states.
51. Kaufman, supra note 18, at 4-6.
52. RICHARD L. ABEL, LAWYERS IN THE DOCK: LEARNING FROM ATTORNEY DISCIPLINARY
PROCEEDINGS 55 (2008).
53. See Larry E. Ribstein, Ethical Rules, Law Firm Structure and Choice of Law, 69 U. CIN. L. REV.
1161, 1201-02 (2001); Eli Wald, Glass Ceilings and Dead Ends: Professional Ideologies, Gender Stereotypes,
and the Future of Women Lawyers at Large Law Firms, 78 FORDHAM L. REV. 2245, 2266 n.113 (2010) (â€œThe
ABA Model Rules of Professional Conduct, their predecessors (the Model Code and the Canons), as well as
every state code of professional conduct implementing the Model Rules, all essentially regulate individual
lawyer conduct and do not meaningfully regulate at the law firm level.â€).
54. Eli Wald, Taking Attorney-Client Communications (and Therefore Clients) Seriously, 42 U.S.F. L.
REV. 747, 750 (2008). Similarly, legislative promulgation can take place in an effective and responsible
manner, controlling for some of the obvious disadvantages of lay regulatorsâ€”such as lack of subject matter
expertise and regulatory capture. Finally, market-based rule-promulgation (that is, de-regulation) could be
imagined to strengthen, not weaken, the position of clients vis-Ã -vis lawyers. For example, the elements of
malpractice could be relaxed to allow more liability-based private regulation by clients, along with mandatory
rules for malpractice liability coverage akin to those adopted by Oregon (enhancing the role of insurance
companies as regulators), and more demanding disclosure from lawyers regarding legal services to clients. Sahl,
supra note 33, at 101-102
2010 / Should Judges Regulate Lawyers?
place for two reasons: the simplistic assumption that the judiciary alone should
promulgate rules of conduct for the legal profession; and the entrenched tradition
of courts delegating their promulgating authority to the ABA and the organized
bar. The powerful combination of simplistic assumptions about the exclusive role
of the judiciary in promulgating rules of conduct (e.g., judges alone should
promulgate rules) and acceptance of the status quo regarding how courts
promulgate rules (e.g., deferring to the ABA and the organized bar) preempts the
development of alternative bodies to compete with the judiciary for promulgating
system-wide rules. Rather than continuing to assume that judges should
promulgate system-wide rules, we ought to encourage the development of
alternative bodies of rule-promulgation and demand that the judiciary actually
exercises its power to promulgate, instead of delegating to the ABA and the
Second, should judges have the power to promulgate ad hoc rules? The case
for judicial expertise here is compelling. Who better than a presiding judge to
know and understand the needs of the court? Moreover, it seems obvious that
judges should control and administer their own courtrooms. These compelling
arguments, however, do not support vesting rule-promulgation power in every
court. To begin with, granting courts enforcement powers (rather than
promulgation powers) accomplishes the compelling goal of allowing judges to
control and manage their own courtrooms. Contempt and sanctioning powers
would allow courts the ability to address misconduct taking place in their
courtrooms. Next, the great variance in rules of conduct across courts suggests
that perhaps courts exercise the rule-promulgation power poorly, with
insufficient consideration for the interests of clients and lawyers alike in
uniformity.55 For example, vesting ad hoc rule-promulgation powers with the
United States Supreme Court and the statesâ€™ highest courts, with the expectation
that they promulgate applicable rules for federal and state courts respectively,
would confer on the rules the benefit of judicial expertise yet result in much
needed uniformity and cooperation across courts.56 Once again, rather than
assuming that all courts should promulgate ad hoc rules of conduct, we ought to
insist on the development of compelling justifications for the use of such power,
and if good reasons cannot be produced, consider stripping lower courts of this
To be clear, the objective of this Article is not to argue against judicial
promulgation of rules of conduct for the legal profession. Given the entrenched
role of judges in regulating lawyers, as well as some of the persuasive
justifications for judicial involvement in rule promulgation, such an assertion
would be too far-fetched and ill-advised. Rather, the point is that judges, the legal
55. Zacharias, Federalizing Legal Ethics, supra note 10, at 345-73 (exploring the impact of splintered
rules of conduct on lawyers and clients).
56. See Zacharias & Green, supra note 37, at 74; McMorrow, The (F)Utility of Rules, supra note 13, at
McGeorge Law Review / Vol. 42
profession, and the public should not take judicial promulgation of rules of
conduct for granted, but instead subject it to close scrutiny. Arguably, by
deferring to the ABA and the organized bar, the judiciary under-promulgates topdown, system-wide rules, and by allowing each court to announce its own local
rules, the judiciary over-promulgates at the ad hoc level.
IV. JUDICIAL ENFORCEMENT OF RULES OF CONDUCT
Consistent with analyzing judicial rule promulgation, examining judicial rule
enforcement calls for addressing three kinds of questions: (1) can judges enforce
rules of professional conduct (that is, do judges have the power and authority to
enforce rules for lawyers?); (2) do judges enforce rules of conduct (that is, do
judges in fact exercise the power to enforce rules?); and (3) should judges have
the power to enforce rules of conduct, either exclusively or alongside other
A. Can Judges Enforce Rules of Conduct?
Courts clearly have the power to enforce existing rules of conduct.57 Judicial
enforcement of attorney regulation consists of formal and informal measures.
Formal enforcement includes sanctioning a lawyer pursuant to either a statutory
provision (such as Rule 11 of the Federal Rules of Civil Procedure) or the courtâ€™s
inherent powers. It also includes measures other than sanctions, such as the
authority to award attorneyâ€™s fees and court costs, and the power to disqualify an
attorney tainted by a conflict of interest. Informal enforcement includes oral and
written orders, referrals to the disciplinary authorities, and modes of interaction
with lawyers.58 Indeed, a judgeâ€™s mere presence may command respect and lead
lawyers to act a certain way. Judges who have developed a reputation for not
tolerating a certain kind of conduct may be able to influence attorney conduct
and preempt attorney misconduct in and outside of the courtroom.
It is important to note, however, that while all judges have the power to
enforce rules of conduct,59 they generally lack the power to discipline lawyers. In
57. See supra notes 24-26 and accompanying text.
58. McMorrow et al., Judicial Attitudes Toward Confronting Attorney Misconduct, supra note 13, at
Judges have a panoply of procedural and substantive rules to address attorney conduct issues that
arise in litigation. For example, in federal courts judges may rely on Rule 11 and Rule 37 of the
Federal Rules of Civil Procedure, as well as various discovery rules, to establish norms of conduct
and impose sanctions. Judges can supplement these rules with their own creative responses using the
courtâ€™s inherent power . . . State judges have a similar variety of rules and inherent powers.
Id.; see also Randall T. Shepard, What Judges Can Do About Legal Professionalism, 32 WAKE FOREST L. REV.
621, 622-23 (1997) (exploring means of judicial regulation of lawyers other than the traditional forms of written
opinions and referral to the disciplinary authorities).
59. Recall the term â€œrules of professional conductâ€ denotes the entire body of law regulating the conduct
of lawyers, not any particular set of rules. See supra note 4.
2010 / Should Judges Regulate Lawyers?
other words, individual judges are usually not authorized to regulate attorneys
through professional discipline. The power to impose professional discipline is
reserved to a subset of the judiciary, state supreme courts, often not directly but
rather through the established disciplinary systems.60
B. Do Judges Enforce Rules of Conduct?
As rule enforcers, the judiciary wears two hats: first, state supreme courts
oversee the barâ€™s disciplinary processes, and second, individual judges enforce
rules of conduct. All state supreme courts enforce rules of conduct in the former,
supervisory sense.61 A growing body of empirical research suggests, however,
that the judiciary exercises its enforcement power in the latter sense only
reluctantly and infrequently for two inter-related reasons.62 Although the judiciary
has the power to promulgate rules of conduct, it appears that some individual
judges often do not see that power as relevant to their own work in the
courtroom.63 These judges see both the rules of professional conduct and their
power to enforce them pursuant to the positive aspect of the inherent powers
doctrine not as an independent duty, but rather as flowing from their obligation to
ensure a fair and efficient disposition of the cases before them.64 The task of
enforcing the rules seems further removed from courtsâ€™ primary agenda because,
while rule promulgation is dominated by the litigation paradigm, only a handful
of rules actually have relevance in the daily practice of the courts.65
Whether the judiciaryâ€™s reluctance to enforce rules of conduct against
lawyers constitutes a problem depends on whether one thinks that judges should
be in the business of enforcing rules. The conventional wisdom is that judges
should enforce rules of conduct, and that their failure to do so constitutes a
problem in need of attention. Concerned commentators often call upon judges to
do more to enforce professionalism on lawyers.66
60. See supra note 16. See, e.g., Hustedt v. Workers Compensation Appeals Board, 30 Cal. 3d 329
61. Michael J. Powell, Professional Divestiture: The Cession of Responsibility for Lawyer Discipline,
1986 AM. B. FOUND. RES. J. 31 (examining the processes by which state supreme courts assumed responsibility
for overseeing disciplinary system in place of bar associations).
62. See McMorrow et al., Judicial Attitudes Confronting Attorney Misconduct, supra note 13, at 1454;
McMorrow, The (F)Utility of Rules, supra note 13, at 38.
63. Id. This perspective may be explained in part by the fact that while the judiciary has the power to
promulgate rules of conduct, most promulgation is done at the top-down, system-wide level by state supreme
courts, and not by trial or appellate courts. Since a majority of judges do not engage in rule promulgation, the
task may reasonably seem somewhat removed from their work in the courtroom.
66. Camp, supra note 14, at 1392.
McGeorge Law Review / Vol. 42
C. Should Judges Enforce Rules of Conduct?: The Seemingly Straightforward
Case for Judicial Enforcement of Rules
â€œ[W]ho better than judges, who have daily interaction with
attorneys, to keep a proverbial finger on the pulse of attorney
Presiding over the adversary system, judges are arguably well-positioned to
directly observe lawyer misconduct. Judges â€œwill know if a lawyer has failed to
file a pleading,â€68 has poorly researched or drafted pleadings,69 is ill prepared for
a case, or is abusive toward opposing counsel, a witness, or his own client in the
courtroom. The institutional design of the adversary system also positions judges
to respond well to instances of attorney misconduct, giving courts great
flexibility in terms of both the kind of sanction they may impose (formal,
informal, monetary, evidentiary, etc.), as well as its timing (immediate, after a
separate hearing, etc.), such that judges can appropriately respond in context to
different types of misconduct. Next, judicial expertise in fact findings, mastery of
the relevant law, and in fashioning appropriate remedies allows the judiciary to
effectively respond to attorney misconduct. That is, judges have a relative
comparative advantage in deciding disputes, and thus have an advantage in
resolving disputes about attorney misconduct. The combination of functional
advantage and relative comparative expertise strongly supports the desirability of
judicial enforcement of rules of conduct.
Moreover, judicial enforcement is not only consistent with the history of
judicial regulation and courtsâ€™ longstanding claims to have the authority and
power to regulate the legal profession,70 but also with the sense that judges do and
should play an important role in ensuring that the bar lives up to high standards
of professional conduct.71 Judicial regulation of lawyers comports with societal
expectations of lawyers, clients, the public, and the judiciary itself regarding the
role of judges ensuring fairness in the legal system. Some argue that judges
should regulate lawyers because enforcement of professionalism is, and should
be, an integral part of what it means to be a judge.72 By virtue of their elevated
67. McMorrow et al., Judicial Attitudes Toward Confronting Attorney Misconduct, supra note 13, at
1457 (quoting 5-H Corp v. Padovano, 708 So. 2d 244, 247 fn.8 (Fla. 1997)).
68. Wilkins, Who Should Regulate Lawyers?, supra note 9, at 808.
69. See, e.g., ABEL, LAWYERS IN THE DOCK, supra note 52, at 502 (describing an attorneyâ€™s poor
performance before an immigration judge).
70. Although as Barton points out, legislatures used to be more involved once upon a time. Barton,
supra note 4, at 1172-73. See also, Kaufman, supra note 18, at 4 (â€œFor better or worse, and I think for better,
history and tradition have given the task of regulating lawyersâ€™ conduct largely to the countryâ€™s judiciary.â€).
71. Camp, supra note 14, at 1392 (â€œJudges have a unique ability to project and enforce professionalism
standards.â€); See generally Shepard, supra note 58 (examining judges’ role in encouraging attorney
72. Warren E. Burger, Chief Justice, U.S. Supreme Ct., Remarks at the American Law Institute Opening
Session: The Necessity for Civility (May 18, 1971), in 52 F.R.D. 211, 215 (1971):
2010 / Should Judges Regulate Lawyers?
status within the profession as well as their position as keepers of the rules of the
adversary game, and in contrast to lawyers who are expected to act as zealous
client advocates, judges are expected to ensure the fairness of the justice system,
which entails ensuring lawyers behave consistent with the rules of conduct.
Accordingly, judges have a special duty to uphold and cultivate standards of
professionalism.73 Some scholars cite a recent surge in attorney misconduct,
explained in terms of a decline in values and lack of civility and professionalism
in and outside of the courtroom, as proof that judicial enforcement of rules is
necessary and desirable.74
Against this backdrop, empirical findings suggesting that the judiciary only
reluctantly regulates lawyers are usually met with calls for judges to be more
proactive and assume a greater role in regulating the profession.75
D. The Case Against Judicial Enforcement of Rules of Conduct
1. Judgesâ€™ Position in Assessing Attorney Misconduct Revisited
Since many attorneys do not appear or interact with judges at all in the
ordinary course of their practice (and even within the confines of the adversary
system most cases settle with little to no judicial intervention) the possible extent
of judicial enforcement of rules of conduct should not be exaggerated.76 More
importantly, even for the subset of situations that do involve lawyers interacting
with the judiciary, judges only observe the â€œtip of the icebergâ€ when it comes to
attorney misconduct. The point is not merely that significant attorney conduct
[C]ivility is relevant to judges, and especially trial judges because they are under greater stress than
other judges, and subject to the temptation to respond in kind to the insolence and mad manners of
lawyers. Every judge must remember that no matter what the provocation, the judicial response must
be judicious response and that no one more surely sets the tone and the pattern for courtroom
conduct than the presider.
Id.; see also, Kenji Yoshino, Whatâ€™s Past is Prologue: Precedent in Literature and Law, 104 Yale L. J. 471, 479
(1994) (exploring how social expectations construct and shape judicial role and conduct).
73. Interestingly, taking seriously the proposition that judges as judges must be involved in regulating
lawyers arguably implies even if it turns out that judges are not particularly effective or efficient in regulating
lawyers, there would still be a reason for them to be involved in regulating lawyers.
74. See, e.g., AMERICAN BOARD OF TRIAL ADVOCATES, CODE OF PROFESSIONALISM, available at
http://www.abota.org/NetCommunity/Document.Doc?id=71 (last visited Sept. 18, 2010) (on file with the
McGeorge Law Review); AMERICAN BOARD OF TRIAL ADVOCATES, PRINCIPLES OF CIVILITY, INTEGRITY AND
PROFESSIONALISM, available at http://nevadacountycourts.com/documents/public/Principles%20of%20Civility.
pdf (last visited Sept. 18, 2010) (on file with the McGeorge Law Review); Loren McMaster, Thoughts on
Improving Civility and Professionalism, SACRAMENTO LAWYER Jan.-Feb. 2007, at 16; Loren McMaster,
Attorney Guidelines of Civility and Professionalism, SACRAMENTO LAWYER Mar.-Apr. 2008, at 8; CALIFORNIA
ATTORNEY GUIDELINES OF CIVILITY AND PROFESSIONALISM, available at http://nevadacountycourts.com/
documents/public/CalBar%20Guidelines%20of%20Civility.pdf (last visited Sept. 18, 2010) (on file with the
McGeorge Law Review).
75. See, e.g., Camp, supra note 14, at 1392.
76. The judiciary reaches all lawyers in the limited sense that statesâ€™ highest courts promulgate rules of
professional conduct that apply to all lawyers, and all attorneys can face malpractice lawsuits.
McGeorge Law Review / Vol. 42
takes place outside of the courtroom (for example, attorney-client
communications, communications with opposing counsel, depositions and
discovery), but rather that attorney conduct directly observable by judges
constitutes but a small part of a much larger pattern of conduct not directly
observed by the judiciary. Assessing and acting on directly observable attorney
conduct may be difficult to do without being privy to the greater context.
Judges can fairly easily observe and effectively react to a self-standing act of
misconduct; for example, a failure to meet a court imposed deadline,
incompetence in the courtroom, or attorney abuse of opposing client, a witness,
or a client. Attorney conduct that is part of a larger pattern, however, may be
much harder to evaluate quickly. Even a supposedly straightforward failure to
meet a deadline or to effectively communicate with opposing counsel may be in
part the result of opposing counselâ€™s refusal to cooperate. Specific attorney
conduct in a deposition or in discovery may be part of a larger pattern or in
response to off-the-record conduct by opposing counsel. Without investing time
and energy in learning the relevant context of attorney conduct, which is not
directly observable in court (by reviewing deposition transcripts, scheduling
additional hearings, etc.), a judge may not, in practice, occupy a convenient
position from which he or she can assess attorney conduct.
Attempting to regulate lawyers based on observable conduct without an
appreciation of the greater context within which the conduct takes place risks
ineffective regulation. Consider the following example: Judge (J) concludes that
Lawyer (L) has failed to disclose to the court controlling authority damaging to
her clientâ€™s case.77 L is a senior associate with a large law firm. Before
sanctioning Lâ€™s misconduct, should J inquire further regarding the misconduct?
What if Lâ€™s failure to disclose stems from her reliance on research conducted by
a junior associate (JA) at her firm who failed to identify the case law in question?
It would seem that the focus of the regulation should be Lâ€™s ineffective
supervision of JAâ€™s work and JAâ€™s incompetence, not merely Lâ€™s failure to
disclose the controlling authority. What if Lâ€™s failure to disclose stems from a
direct order she received from a partner (P) at her firm? It would seem that the
focus of the regulation should at least include Pâ€™s conduct. And what if Pâ€™s
conduct was in turn the result of intense pressure from within the law firm to
please the client and not reveal the controlling authority? Should the law firm or
some of its partners be the focus of Jâ€™s regulatory efforts?78
The example is not intended to belittle Lâ€™s misconduct. It is simply meant to
illustrate that the so-called convenient functional position from which a judge can
77. MODEL RULES OF PROFâ€™L CONDUCT R 3.3(a)(2) (2010) (â€œA lawyer shall not knowingly . . . fail to
disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse
to the position of the client and not disclosed by opposing counsel.â€).
78. On the need to promulgate rules of conduct at the firm-level. See supra note 53 and accompanying
text; see generally MILTON REGAN, EAT WHAT YOU KILL: THE FALL OF A WALL STREET LAWYER (2005)
(situating the professional misconduct of one large law firm attorney within a rich context of firm practice that
help explain the lawyerâ€™s behavior).
2010 / Should Judges Regulate Lawyers?
easily observe and react effectively to attorney misconduct should not be
overstated. Significant lawyer conduct takes place outside of the courtroom and
even conduct directly observable by judges takes place within a context not
necessarily easily observable by judges.
Moreover, observed attorney misconduct may not necessarily be correctable
by judicial enforcement of rules of professional conduct. Consider the following
example: J observes that L is ill-prepared in the courtroom, does not seem to
know the case well or communicate effectively with his client, repeatedly files
for continuances, and fails to meet court imposed deadlines. L is apologetic,
promises to do better when informally reprimanded by J, but appears to be either
unable or unsuccessful in addressing Jâ€™s concerns.79 J believes that Lâ€™s
misconduct is likely connected to his significant caseload, possibly too large to
J is very concerned with Lâ€™s misconduct and his clientsâ€™ best interests, but
doubts whether sanctioning L will be effective in remedying the situation. L
appears to be representative of a subculture of lawyering, where lawyers assume
a large caseload, defer to agencies who refer clients to them, provide sub-par
legal services, and charge relatively low fees for their services.80 Lâ€™s misconduct
must be addressed, but J is concerned that simply sanctioning L may amount to
addressing a symptom rather than the problem. Lâ€™s clients might end up being
referred to someone just like L, or worse, be left without representation
altogether. J is uncertain whether, given the larger context, Lâ€™s clients will be
better off with or without Lâ€™s representation, and whether enforcing rules of
conduct against L would be effective in the situation.81
Finally, by the time parties bring a dispute to the judgeâ€™s attention, the issues
may be complex and involve mutual allegations of wrongdoing.82 A judge may
find it both difficult and time consuming to attempt to assess the cross-allegations
All in all, the nature of the adversary system no doubt positions judges to
observe some attorney misconduct and allows them to respond to it promptly and
effectively. Nonetheless, judgesâ€™ ability to observe and react to misconduct
should not be exaggerated in terms of detecting misconduct, assessing it in
context, and addressing it.
79. See ABEL, LAWYERS IN THE DOCK, supra note 52, at 496.
80. Id. at 505.
81. Eli Wald, Book Review, 59 J. LEGAL EDUC. 311, 327-30 (2009) (reviewing RICHARD L. ABEL,
LAWYERS IN THE DOCK (2008)) (arguing that responses to individual attorney misconduct ought to be grounded
in a contextual understanding of the wrongdoing as well as in institutional considerations contributing to the
82. Camp, supra note 14, at 1391 (observing that â€œdiscovery abuses or bad faith are seldom limited to
one side on abusive litigation.â€).
83. For example, both parties may accuse each other of discovery abuse, with plaintiffâ€™s counsel alleging
non-responsiveness or being buried in over-the-top irrelevant production, and defense counsel arguing overbroad discovery requests.
McGeorge Law Review / Vol. 42
2. Judgesâ€™ Competence and Experience Assessing Misconduct
Related to the argument that the judiciary is well-positioned to observe
lawyer misconduct is the notion that judges are well-positioned to respond to
misconduct because they are competent and experienced in doing so. The
argument consists of three elements. First, it assumes that judges know the law
governing attorneysâ€™ conduct. Second, that judges are experienced in evaluating
factual allegations and applying the law given the factsâ€”meaning that they have
the capacity to effectively assess claims regarding attorney misconduct and
determine the appropriate sanction, if any. Finally, that judges have experience
judging, that is, fashioning an appropriate remedy to an instance of misconduct.
Upon reflection, however, it seems that all three elements of the argument
are somewhat flawed. Assuming judicial knowledge of the relevant rules appears
to be a questionable proposition because the law governing lawyers is a complex
web of uncertainty.84 A large body of literature documents the significant
problem of the indeterminacy of the law governing lawyers.85
Furthermore, while judges may be generically experienced in assessing facts
and applying the law, their experience with regard to lawyer conduct may be in
decline. Empirical studies suggest that the judiciary is becoming more
professional, with career judges becoming more common.86 Whereas historically
state and federal judges were experienced practitioners, it appears that state
judges at the trial level assume their positions at a younger age with less
experience than their predecessors, and that state appellate and supreme court
judgesâ€”as well as federal judgesâ€”increasingly assume their positions with
more judicial experience and less practice experience.87
While the debate about the desirability of career versus practice-oriented
judges continues, one thing is clear: the professionalization of the judiciary
detracts from its ability to effectively regulate lawyers. Judges with practice
experience are more likely to better understand and relate to attorney misconduct.
Indeed, judges with practice experience are also more likely to command the
respect of the lawyers appearing before them, preempting misconduct and
diminishing the need for formal enforcement. On the other hand, judges with
little practice experience are less likely to understand attorney conduct,
understand and appreciate the context within which it takes place, or to command
the respect of the litigators appearing before them, and may possibly be less
84. Zacharias, supra note 10, at 345-73.
85. See e.g., Zacharias & Green, supra note 37; McMorrow, The (F)Utility of Rules, supra note 13.
86. See Sheldon Goldman, A Profile of Carterâ€™s Judicial Nominees, 62 JUDICATURE 246, 248-49 (1978);
Sheldon Goldman, Reaganâ€™s Judicial Legacy: Completing the Puzzle and Summing Up, 72 JUDICATURE 318,
320-22 (1989); Sheldon Goldman et al., Clintonâ€™s Judges: Summing Up the Legacy, 84 JUDICATURE 228, 323,
87. Monique RenÃ©e et al., Evaluation of Judicial Careers in the Federal Courts, 1789-2008, 93
JUDICATURE 62, 63 (2009); Russell Wheeler, Changing Backgrounds of U.S. District Judges: Likely Causes
and Possible Implications, 93 JUDICATURE 140, 140 (2010).
2010 / Should Judges Regulate Lawyers?
inclined to intervene in and address instances of attorney misconduct. In other
words, even if career judges are better judges in terms of deciding the underlying
disputes before them, their declining practice experience renders them likely less
effective in terms of regulating attorney conduct.
Finally, while judges do have expertise in determining appropriate remedies,
they also have a countervailing incentive not to sanction attorneys for
misconduct. Sanctioned attorneys are likely to appeal the sanction, resulting in
additional delay to the proceedings and a possible reversal by a court of appeals.88
3. Judgesâ€™ Institutional Role
Notwithstanding rhetoric regarding the role of judges as regulators of the
justice system and of lawyers, the judiciary is primarily concerned with the
efficient disposition of disputes as opposed to the enforcement of legal ethics
rules.89 That is, judges do not perceive their professional mandate as making them
responsible for the conduct of lawyers. Rather, only to the extent that attorney
conduct impacts the case before them do judges respond to lawyer misconduct.90
Even when attorney misconduct is likely to impact the case, a judge must balance
the costs and benefits of enforcing rules of conduct. Not only is judicial
regulation time consuming and costly, it also distracts the judge from the case at
hand. A judge may therefore tend to focus only on egregious misconduct,
tolerating other misconduct in the name of conserving judicial resources. This
tendency to focus on only egregious conduct is further supported by the fact that
each judge only sees a subset of each attorneyâ€™s modus operandi and has little
incentive to explore the greater context and patterns of misconduct, in part
because a judge may lack the power and authority to act on such larger context,
even if known to him or her. This means that, given the role of judges and their
primary objective of the fair and efficient resolutions of disputes, significant but
not egregious attorney misconduct may escape through the judicial cracks.
Inquiry into the role morality of judges creates further doubt regarding their
institutional capacity to regulate lawyers.91 â€œ[T]he role morality of the judge is
also to be enscribed [sic] in two principles: passivity and moral nonaccountability. The principle of passivity is justified on the basis that primary
responsibility for the carriage and presentation of the case lies with counsel;
88. See e.g., Robert B. Tannenbaum, Misbehaving Attorneys, Angry Judges, and the Need for a
Balanced Approach to the Reviewability of Findings of Misconduct, 75 U. CHI. L. REV. 1857, 1857 (2008).
89. See McMorrow et al., Judicial Attitudes Toward Confronting Attorney Misconduct, supra note 13, at
90. McMorrow, The (F)utility of Rules, supra note 13, at 33 (â€œSince attorney conduct issues are largely
derivative in court practice, secondary to the fair resolution of the litigantsâ€™ claims, the federal courts appear
reluctant to address attorney conduct issues unless they will have a consequence in the case at hand.â€).
91. Wasserstrom, supra note 8 (defining role morality to mean justifications for conduct one engages in
while acting in a specific role, like that of a lawyer or a judge, which may differ from common morality, the
justifications one would ordinarily offer to explain conduct).
McGeorge Law Review / Vol. 42
hence the role of the judge is primarily quiescent.â€92 Judicial passivity is often
contrasted with judicial activism,93 leaving another aspect of judicial passivityâ€“
the sense of inability or unwillingness to enforce rules of conductâ€“underexplored. Judicial passivity makes judges less inclined to enforce rules of
professional conduct against lawyers. Because the judicial role morality is
defined in terms of passivity, it makes a judge less likely to initiate and play a
leading role in regulating a lawyer, and more likely to await action by the
opposing counsel. Moreover, judicial regulation of lawyers seems to contradict
the very notion of judicial passivity. Ideally, if judges are to sit back and allow
counsel to assume the responsibility for the carriage and presentation of the case,
assuming a leading role in regulating one or both of the parties seems
inconsistent with the role morality of judges. A judge engaged in sanctioning a
lawyer appearing before him or her may appear to be less impartial toward that
lawyer and her client. Thus, judges who take impartiality and its appearance
seriously may be reluctant to enforce rules against misbehaving lawyers.
Finally, recent empirical research suggests that judges may be too close to
lawyers to regulate them, that is, they may tend to identify with lawyers, they
may be too understanding and too protective of members of the legal profession,
and the bias may be subconscious and therefore hard to address.94
Judicial role morality thus casts a doubt on the desirability for judicial
enforcement of rules of professional conduct. While the judiciary is perceived by
lawyers, clients, and the public to have a heightened responsibility for ensuring
the fairness of the legal system (including lawyersâ€™ conduct), judges themselves
do not see their own role as entailing regulation of the conduct of lawyers per
se.95 Even if they did, their role as passive, neutral adjudicators within the
adversary system does not lend itself toward regulating lawyers appearing before
them, because it tends to compromise the very neutrality with regard to lawyers
that the judicial role requires.
92. Richard F. Devlin, From Archetypes to Architects: Re-Envisioning the Role Morality of Trial Level
Judges 7 (Dec. 2, 2009) (unpublished manuscript) (on file with the McGeorge Law review) (â€œThe principle of
moral non-accountability is justified on the basis that the rules of the legal system, both procedural and
substantive, are sufficiently constraining such that the role of a judge is essentially that of a conduitâ€”a
transmission belt . . . and that ultimately the judge, while legally accountable in an objective sense, is not
subjectively implicated in a moral senseâ€); see also POSNER, HOW JUDGES THINK, supra note 2, at 252 (arguing
that â€œ[j]udges are less likely to be drunk with power if they realize they are exercising discretion than if they
think they are just a transmission belt for decisions made elsewhere and so bear no responsibility for any ugly
consequences of those decisions.â€).
93. Devlin, supra note 92.
94. See e.g., Benjamin H. Barton, Do Judges Systematically Favor the Interests of the Legal Profession?
59 ALA. L. REV. 453, 461-65 (2008). Interestingly, the professionalization of the judiciary and increased number
of career judges may render judges less likely to be partial to lawyers.
95. See supra notes 63-65.
2010 / Should Judges Regulate Lawyers?
4. Judgesâ€™ Incentives and Interests
Judicial self-interest may further hinder judicial rule enforcement against
lawyers. From the perspective of judges, there is a cost associated with regulating
lawyers, as enforcing rules of conduct likely results in an acrimonious
relationship, even animosity. The benefit of regulation, on the other hand, is more
remote. While effective regulation contributes to the overall performance of the
legal profession and hopefully improves the conduct of an attorney in question,
such misconduct may instead persist or require continuous judicial attention, and
the resulting â€œbetterâ€ conduct may be offset by the acrimonious nature of the
relationship. A judge may be tempted to think that other disciplinary avenues
might be better suited or more likely to intervene, and forego taking action
against misbehaving lawyers. Indeed, even misconduct directed toward the judge
itself may be too costly from the judgeâ€™s perspective to address.96
Elected judges face a significant additional cost associated with the
regulation of lawyers. Judicial election campaigns are becoming more costly and
lawyers are a dominant donor constituency.97 Enforcement risks alienating
potential donors.98 The same rationale, albeit with less force, holds true for
appointed judges and judges facing retention elections. Regulation of lawyers,
with the consequence of developing acrimonious relationships with members of
the bar, may lead to criticism of judges. Lawyers are potential repeat players in
their interactions with judges, and judges therefore have an incentive to keep the
Moreover, regulation of lawyers is likely to result in appeals. This constitutes
a double disincentive for judicial enforcement of rules of professional conduct.
First, for judges concerned with conserving judicial resources, enforcing rules
against lawyers will result in more work as the regulated lawyer is likely to
challenge the enforcement. Second, judges may fear being reversed on appeal.
Empirical research suggests that while courts of appeals tend not to scrutinize the
finding of attorney wrongdoing, they do tend to heavily scrutinize the sanction
imposed, and often times reverse it.99
96. ABEL, LAWYERS IN THE DOCK, supra note 52, at 105-91 (Abelâ€™s illuminating case study of
professional misconduct documents repeated abuse of the immigration magistrate by the attorney in question as
well as the magistrateâ€™s inability and reluctance to respond to it, in part out of a desire to conserve judicial
resources and avoid additional case delay.).
97. See, e.g., Jed Handelsman Shugerman, Twist of Long Terms: Judicial Elections, Role fidelity, and
American Tort Law, 98 GEO. L.J. 1349, 1401 (2010) (â€œmodern judicial campaigns have become dramatically
more expensive due to television and direct mailingâ€); Nancy M. Olson, Judicial Elections and Courtroom
Payola: A Look at the Ethical Rules Governing Lawyersâ€™ Campaign Contributions and the Common Practice of
â€œAnything Goes,â€ 8 Cardozo Pub. L. Pol’y & Ethics J. 341 (2010) (exploring the role lawyers play in expensive
judicial campaigns and calling for enhanced regulation of lawyersâ€™ contributions).
98. See e.g., Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252, 2265 (2009); Bruce Green, Fear of the
Unknown: Judicial Ethics After Caperton, 60 SYRACUSE L. REV. 229, 229 (2010).
99. McMorrow, The (F)Utility of Rules: Regulating Attorney Conduct in Federal Court Practice, supra
note 13, at 43-47.
McGeorge Law Review / Vol. 42
Finally, trial judges may face a personal conflict of interest when called upon
to enforce rules of conduct against misbehaving lawyers in their courtrooms.
Abusive attorney conduct toward opposing counsel, witnesses, or court personnel
may be perceived by some judges as a personal slight, that is, the misconduct
may be taken personally by presiding judges as disrespectful of their courtroom.
In extreme circumstances, some judges may find it hard to resist imposing
sanctions not only based on the underlying conduct but also as a measure of
personal vindication.100 Such scenarios suggest the wisdom of having a detached
regulator enforce the rules and support judicial referral of misbehaving attorneys
to the disciplinary system.101
E. A Modest Proposal to Improve Trial Courtsâ€™ Rule Enforcement: Appointment
of Legal Ethics Magistrates
The assertion that judges are well-positioned to observe and respond to
attorney misconduct should not be overstated. While in some circumstances,
especially with misconduct directly observed by a judge, the judiciary is wellpositioned to observe and react to attorney wrongdoing; in other instances it is
not.102 The desirability of judicial enforcement of rules of professional conduct
cannot be assumed, but should be explored in particular contexts and assessed
not only on its own merits, but also relative to the ability of alternative regulators
to enforce rules of conduct against lawyers.
Unlike the case of rule promulgation, one need not imagine and encourage
new regulators to step forward and enforce rules of conduct. To the contrary, a
multitude of regulators, private and public actors alike, appear to be willing and
able to enforce rules, and the number of regulators, it seems, grows weekly.103
Conducting contextual comparative institutional analysis to determine the
strengths and weaknesses of judicial rule enforcement and other modes and types
of regulators is thus going to be a difficult task, even when necessary empirical
evidence becomes available104 and even if no new contenders for rule
100. Id. McMorrowâ€™s finding that courts of appeal tend to uphold trial courtsâ€™ findings of attorney
misconduct, but often reverse the sanctions imposed, is arguably explained in part by the fact that the former
believe that the latterâ€™s judgment is clouded by their personal interest in punishing misbehaving attorneys.
101. See supra note 16.
102. Wilkins captures this very point, noting that the judiciary will not tend to be well-suited to observe
and respond to agency problem between clients and their lawyers. See Wilkins, Who Should Regulate Lawyers?,
supra note 9, at 824, 829.
103. Coquillette & McMorrow, supra note 10. Indeed, that the traditional state-based judiciallynominally-controlled but organized bar driven system of discipline is becoming a smaller and smaller part of the
wide web of attorney regulation constitutes yet another reason to subject judicial regulation of lawyers to
104. Carole Silver, What We Donâ€™t Know Can Hurt Us: The Need for Empirical Research in Regulating
Lawyers and Legal Services in the Global Economy, 43 AKRON L. REV. 1009, 1016 n.19 (2010) (arguing that
the debates about attorney regulation are â€œdifficult to resolve, in great part, because of the absence of empirical
2010 / Should Judges Regulate Lawyers?
Nonetheless, the above conceptual analysis suggests the possibility of yet one
more rule enforcer to aid individual judges in resolving complex disputes over
attorney misconduct in conjunction with pending litigation before them: the
development of legal ethics magistrates, who would work with and subject to
individual trial courts to assist the judiciary with the enforcement of rules of
professional conduct. Courts could appoint legal ethics magistrates from the
ranks of senior, experienced practitioners from all segments of the legal
profession, who would be tasked exclusively with resolving disputes concerning
Legal ethics magistrates would be better positioned to observe the attorney
conduct in question compared to trial judges because, unlike trial judges whose
main task it is to resolve the underlying dispute between parties fairly and
efficiently, legal ethics magistrates would be solely dedicated to addressing the
ethical allegations made by opposing counsels. Legal ethics magistrates would
have every incentive to hold evidentiary hearings necessary to assess the ethical
allegations without the fear of distracting themselves from the main function of
the judicial systemâ€”adjudicating the underlying disputes. Competence and
experience are another key advantage, enabling magistrates to effectively
respond to attorney wrongdoing: legal ethics magistratesâ€™ diverse practice
backgrounds would give them the necessary context against which to assess the
conduct in question, unlike career judges who increasingly do not have such a
practice-based perspective. Indeed, appointing legal ethics magistrates with
various practice backgrounds, such as individual, small firm, and large firm
practitioners from different practice areas, would ensure that legal ethics
magistrates are qualified to appreciate attorney conduct in a variety of contexts.
In this sense, functional advantage, experience, and competence will reinforce
each other and allow legal ethics magistrates to better address complex
disagreements over attorney misconduct.
Next, legal ethics magistrates would not suffer from some of the obstacles of
judgesâ€™ role morality. The magistratesâ€™ explicit role would be to enforce rules of
professional conduct, not to fairly and quickly dispose of their caseload. Nor
would they be expected to be neutral or passive toward the lawyers in question.
Legal ethics magistrates would have no disincentives to do their enforcement
jobs: they would all be appointed and have no reason to serve the interests of
lawyers or fear lawyer retaliation come election time. Moreover, to the extent
that experienced lawyers tend to be more interested and invested in maintaining
high standards of professional conduct,105 and given that their experience would
evidence.â€). As Silver compellingly notes, there is much to be determined before we are able to effectively
regulate lawyers. In particular, we need to find out, rather than assume, whether judges are effective enforcers
of rules of professional conduct.
105. In large law firms, for example, prior to the institutionalization and professionalization of risk
management processes, near-retired or partly-retired senior partners would often assume the role of â€œethics
counselâ€ or informal â€œethics guru.â€ See Elizabeth Chambliss & David B. Wilkins, The Emerging Role of Ethics
Advisors, General Counsel, and Other Compliance Specialists in Large Law Firms, 44 ARIZ. L. REV. 559
McGeorge Law Review / Vol. 42
insulate them from self-interested concerns about their own professional future,
legal ethics magistrates would likely be effective in enforcing rules of
professional conduct against lawyers.
Putting a legal ethics magistrate system in place, if only in cases involving
complex ethics disputes and at the discretion of trial judges, will entail some
costs. Should we worry about additional costs and delays, in the sense of a
cottage industry or an ethical â€œside showâ€ for which clients will have to pay?106
Not necessarily. Experienced and respected practitioners nearing retirement
might be committed to the cause of ensuring lawyersâ€™ ethical conduct and fairly
inexpensive to employ. Complaining parties could be obliged to post security
bonds, and measures could be put in place which would make it more difficult, if
not impossible, for lawyers to pass the cost to clients (although lawyers could
simply bypass these measures by raising rates).
Legal ethics magistrates are not envisioned as a quick or one-size-fits-all
solution for the perceived problem of ineffective enforcement of rules of conduct
against lawyers.107 They may help, however, address ineffective enforcement in
some instances, as well as retain some of the advantages of judicial enforcement
without experiencing some of the challenges faced by the judiciary. It remains to
be seen how legal ethics magistrates may fare compared to other alternative
regulatory enforcement mechanisms.
In an era of increased knowledge, sophistication, and sobriety about judicial
decision-making, performance, and role, and a time in which simplistic
assumptions about the judiciary are replaced with constructive and detailed
informed analyses, myths about judges ought to be discredited. One such
simplistic assumption is that judges should regulate lawyers. While the judiciary
has an important role to play in both promulgation and enforcement of rules of
professional conduct, there is little reason to accept as a truism that judges should
This Article shows this truism is neither obvious nor easily explained. With
regard to rule-promulgation, courts may be both under-regulating and overregulating lawyers. By essentially deferring to the ABA Model Rules and to a
process of rule implantation dominated by the organized bar, the judiciary does
(2002); Elizabeth Chambliss & David B. Wilkins, New Framework for Law Firm Discipline, 16 GEO. J. LEGAL
ETHICS 335 (2003); Susan Saab Fortney, Law Firm General Counsel as Sherpa: Challenges Facing the In-Firm
Lawyerâ€™s Lawyer, 53 U. KAN. L. REV. 835 (2005).
106. Chambliss & Wilkins, supra note 105 (describing the emergence of the legal ethics counsel
107. David B. Wilkins, Legal Realism for Lawyers, 104 HARV. L. REV. 469, 503 (1990) (â€œThe rules of
professional conduct are chronically underenforced.â€); Richard L. Abel, Why Does the ABA Promulgate Ethical
Rules?, 59 TEX. L. REV. 639, 648 (1981) (noting that â€œstudy after study has shown that the current rules of
professional conduct are not enforcedâ€).
2010 / Should Judges Regulate Lawyers?
not do enough to meaningfully participate in promulgating top-down, systemwide rules of conduct. At the same time, by adopting a multitude of local rules,
the judiciary over-promulgates ad hoc rules which results in splintered rules and
unnecessary confusion on the part of both lawyers and clients. Similarly, it
appears that the conventional wisdom of accepting, without question, the
desirability of judicial enforcement of rules of professional conduct is
considerably overstated. While judges are well-positioned to observe and react to
some attorney misconduct, they are ill-positioned to detect and react to other
instances of wrongdoing. Judges also face a variety of role-pressures and
incentives to not effectively enforce rules against lawyers. Table I summarizes
the main findings of this Article and offers a conceptual blueprint for assessing
judicial regulation of lawyers in context.
TABLE I: JUDICIAL REGULATION OF LAWYERS
Rule Promulgation Rule Enforcement
Can judges regulate
* Yes, non-exclusively.
* Judges share power with
legislatures, private actors, and
* Yes, non-exclusively.
* Judges share power with
disciplinary agencies, and
Do judges regulate lawyers? * The judiciary under-promulgates
system-wide rules by deferring to
the ABA and the organized bar.
* The judiciary over-promulgates
ad hoc rules resulting in splintered
* Judges often enforce rules
reluctantly and ineffectively.
Should judges regulate
* Yes, non-exclusively.
* Judges should more actively
participate in drafting,
commenting on, and adopting
system-wide rules of conduct.
* In the interest of uniformity and
clarity judges should refrain from
promulgating ad hoc rules.
* Yes, non-exclusively.
* The conventional wisdom
regarding the judiciaryâ€™s
functional and comparative
advantage regulating lawyers is
* In some limited instances
judges should enforce rules; in
others they should defer to
other means and regulatory
Should judges regulate lawyers? It depends. In some circumstances, judicial
promulgation and enforcement of rules of professional conduct is desirable,
while in others it is not. The first step towards answering the question in context,
taken here, is to abandon the simplistic assumption that judges should regulate
McGeorge Law Review / Vol. 42
lawyers. History and tradition notwithstanding, there is simply little support,
analytical or empirical, to the assertion that judges effectively regulate and thus
should regulate the legal profession. The next step is to conduct a contextual
comparative institutional analysis scrutinizing the promulgation and enforcement
abilities of the judiciary broken into its various elements (federal and state, high
court, appellate level, trial level, etc.), and to contrast them with those of
alternative regulatory bodies.108
108. Assessing judicial regulation of lawyers in context might be particularly revealing in the case of
specialized courts, where enhanced judicial expertise is an inherent feature, although the expertise is with regard
to the subject matter being litigated before the court, not lawyersâ€™ ethics. For the growing number and types of
specialized courts, see Banks Miller & Brett Curry, Expertise, Experience, and Ideology on Specialized Courts:
The Case of the Court of Appeals for the Federal Circuit, 43 LAW & SOC’Y REV. 839 (2009); Rekha
Mirchandani, Whatâ€™s So Special about Specialized Courts? The State and Social Change in Salt Lake Cityâ€™s
Domestic Violence Court, 39 LAW & SOC’Y REV. 379 (2005); Robert M. Howard, Comparing the Decision
Making of Specialized Courts and General Courts: An Exploration of Tax Decisions, 26 JUST. SYS. J. 135
(2005); Betsy Tsai, the Trend Toward Specialized Domestic Violence Courts: Improvements on an Effective
Innovation, 68 FORDHAM L. REV. 1285 (2000); Rochelle C. Dreyfuss, Forums of the Future: The Role of
Specialized Courts in Resolving Business Disputes, 61 BROOK. L. REV. 1 (1995). If, as suggested by this Article,
courts were to appoint legal ethics magistrates regularly, the magistratesâ€™ work would come to resemble that of
a specialized legal ethics court. Indeed, the state-based disciplinary system administrative judges also resemble
legal ethics magistrates, yet the former have historically focused on â€œlow-hanging fruitâ€ whereas the latter
would be positioned to also address alleged professional misconduct by powerful attorneys.
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