Professionalism has an idealistic dimension and an institutional one. The idealistic dimension is the notion of voluntary commitment to both client interests and public values. The institutional dimension is the ideal of self-regulation by the bar.
The idealistic dimension remains powerful. However disappointed we are by the distance between the profession's ideals and its members' practices, these ideals continue to inspire valuable efforts. Various professional organizations are making admirable contributions through pro bono representation of disadvantaged people, public education, and disinterested law reform efforts in a range of areas, such as litigation procedure, prisons, and judicial selection. Moreover, the bar's ideals of public service provide the vantage point from which the profession's critics assess and propose improvements to its practices.
The institutional dimension is another story. It is implausible in principle and corrupt in practice. Its current manifestations are a set of strained rationalizations for tawdry self-seeking. The cynicism that the bar's self-regulatory project induces in lay people spills over to discredit the idealistic dimension. We could strengthen the appeal of the idealistic dimension of professionalism by jettisoning the institutional one, or at least revising it substantially.
The core of the institutional dimension is private, monopolistic regulation. Traditionally, professionals have sought to exempt themselves from the suspicion that conventionally attends private monopoly. But few disinterested observers have been persuaded. It is not certain that the bar acts as a self-seeking monopolist, but in such matters as admission to practice, the marketing of legal services, and even conflict and disclosure norms, it seems unlikely that a self-seeking monopolist would have behaved any differently.
The most salient alternative to private monopolistic self-regulation is public regulation through state institutions. I think
that some of the most promising recent developments in professional responsibility have occurred through interventions of national public institutions applying general legal norms in ways that have modified or put pressure on the profession's own norms. What comes to mind is the Supreme Court's striking down of various restrictions on admission and marketing under the free speech and federalism provisions of the Constitution. I am also thinking of the efforts. of the Securities and Exchange Commission and the Office of Thrift Supervision to better align the professional commitment to confidentiality with the public values reflected in fraud and misrepresentation doctrine.
Nevertheless, we are especially sensitive these days to the limitations of state institutions as regulatory actors. And indeed, state institutions have been complicit in the regulatory abuses I attribute to the bar. The bar's exercise of its monopoly power has depended on ratification by state judiciaries and legislatures. The kernel of plausibility in the idea of self-regulation is the implication that the state is too remote, inflexible, and compromised to provide the full range of institutional support for the idealistic aspects of legal professionalism. Moreover, the state is itself a monopolistic organization. To the extent that the objections to the institutional premise of traditional professionalism rest on its monopolistic rather than its private character, it seems most promising to consider non-monopolistic approaches, both public and private.
That is my plan. I first elaborate on the widely felt doubts about monopolistic self-regulation. Then I consider the possibility of nonmonopolistic regimes for two of the most important areas – certification for practice and professional discipline.
William H. Simon,
Who Needs the Bar?: Professionalism without Monopoly,
Fla. St. U. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/871