Nonlegal Regulation of the Legal Profession: Social Norms in Professional Communities
Wendel, W. Bradley, Vanderbilt Law Review
In this Article, Professor Wendel analyzes the advantages and disadvantages of community-based responses to unethical behavior by lawyers. The limits of formal legal regulation of the legal profession are well known. Additional questions have been raised about the efficacy of motivating lawyers to act ethically merely by giving appropriate instruction. What is left, therefore, is a complex and little-studied, but very real, array of informal sanctions. These sanctions are controlled by individual members of the professional community, not by the court or organized bar, and therefore operate largely without the transparency and procedural regularity of formal legal regimes. The advantage of this decentralized sanctioning process is that punishment can often be imposed quickly, and with relatively low transaction costs, because an enforcement agency is not required to engage in expensive information-gathering processes. Informal regulation of legal norms also avoids some of the difficulties that would arise if ethical norms were embodied in formal disciplinary rules.
Professor Wendel, however, cautions against becoming overly enthusiastic about informal, community-based sanctions. A professional community that is too inward-looking, that is content to regulate itself without checks from the outside, may develop pernicious norms as well as beneficial ones. Furthermore, the resistance to external sources of normative control can make a community slow to change. Informal sanctioning practices can sometimes be used against unpopular or less powerful subcommunities, and members of these communities may be stymied in their attempt to reform the community's practices by the lack of extra-community regulatory authority. Community-based sanctions can also spiral out of control and spawn endless feuds. Because the sanctioning authority is another community member, the lawyer who is sanctioned may retaliate in kind, and possibly overretaliate, prompting a further round of sanctioning. Finally, even if one approves in general of informal regulation of professional communities, it is difficult to apply this kind of regulatory scheme to large-scale, impersonal settings such as the community of practicing lawyers in major commercial centers.
Professor Wendel does not argue for the complete adoption or rejection of community-based sanctions. Rather, the claim developed in this Article is that courts, legislatures, and the organized bar ought to be sensitive to the advantages and pathologies of formal legal regulation, on the one hand, and of informal regulation on the other. In the case of the legal profession, some areas of conduct are best left to informal control by local communities, while others are appropriately the province of formal regulation.
What should be done about lawyers who persist in violating ethical norms that are not embodied in positive disciplinary rules? That question has been a recurrent theme in recent legal ethics scholarship. One response has been to propose, experiment, amend, tinker, draft, comment, and redraft, in an attempt to codify the standard of conduct observed to be flouted widely by the practicing bar. Bar associations and courts are seemingly engaged in a never-ending process of promulgating new codes of professional conduct or rules of procedure under which lawyers may be sanctioned for such conduct as bringing frivolous lawsuits, abusing the discovery process, sleeping with their clients, or engaging in discrimination based on race or sex.' Critics fault the project of regulating lawyers through legalistic rules for being predominantly motivated by the organized bar's protectionism or other self-interested reasons;2 for fostering a minimalist or "Holmesian bad man" interpretive stance toward moral questions;3 for slighting the importance of non-legal considerations, such as religious commitments, in professional morality;4 for overlooking the importance of dispositions, character, or other internalized aspects of ethical norms;5 or for failing to account for ethical
pluralism, justified disagreement, or the complexity of moral life. …