The Future of Attorney Regulation is Proactive.

Within the world of attorney regulation, there is a trend towards Proactive Management Based Regulation (“PMBR”).  In this post, the Legal Ethics Forum provided one of the more concise descriptions of PMBR that I’ve seen:

  • “With PMBR, the regulator works with lawyers to address risks to avoid problems, rather than reacting to attorney misconduct after it has occurred.”

In other words, focusing as much on preventing fires as putting them out.

To date, PMBR has been implemented in Australia and Canada.  Two states, Colorado and Illinois, have formally adopted it.  Many other states are moving towards it.

The PMBR movement received a welcome boost last week.  The ABA’s House of Delegates approved Resolution 107.   The text:

“RESOLVED: That the American Bar Association urges each state’s highest court, and those of each territory and tribe, to study and adopt proactive management-based regulatory programs appropriate for their jurisdiction, as a way to enhance compliance 4 with applicable rules of professional conduct and supplement existing disciplinary enforcement mechanisms, and to:

a. assist lawyers, law firms, and other entities in which lawyers practice law in the development and maintenance of ethical infrastructures that help to prevent violations of applicable rules of professional conduct;

b. reduce complaints to lawyer disciplinary authorities;

c. enhance lawyers’ provision of competent and cost-effective legal services; and

d. encourage professionalism and civility in the profession.”

The sponsors’ Executive Summary (page 83) urges adoption of “proactive
management-based regulatory (PMBR) programs to enhance compliance with
applicable rules of professional conduct and supplement existing disciplinary
enforcement mechanisms.”

I culled some additional statements from the Executive Summary and will present them as bullet points:

  • “PMBR programs operate separately from the disciplinary process.”
  • “PMBR programs offer a systemic preventive approach to help lawyers, and the entities where they practice law, develop ethical infrastructures to improve the delivery of competent and cost-effective legal services.”
  • “PMBR programs encourage professionalism and civility, and change for the better the relationship between the regulator and regulated.”
  • “PMBR programs provide lawyers with an array tools, including self-assessment
    checklists and online programming, to help them and the entities where they
    practice law develop ethical infrastructures and identify where they may need
    additional skills, training, and education.”
  • “PMBR programs are not one-size-fits-all, may be crafted to meet the needs of each
    jurisdiction, and are reasonable in cost.”

Here in Vermont, we’ve not formally adopted PMBR.  However, we’ve made several of its principles central to the Professional Responsibility Program’s mission.

For example, many of you know that I was disciplinary counsel from 2000-2012.  That entire time, I had a full-time deputy and we reviewed, on average, 246 new disciplinary complaints per year.  During the same period, bar counsel was half-time and responded to, on average, 234 ethics inquiries per year.

Our default, indeed our very set-up, was to react.

In 2012, under the leadership of then-chair Jan Eastman, the Professional Responsibility Board recommended that the Court reallocate resources with the PRP.  The crux: make bar counsel a full-time position, reduce deputy disciplinary counsel to a half-time position.

It worked.

FY                         Disciplinary Complaints                               Inquiries of Bar Counsel 2013                                    285                                                                                   627            2014                                    243                                                                                   750               2015                                    208                                                                                   827               2016                                    181                                                                                   1,100               2017                                    140                                                                                   1,109               2018                                    149                                                                                   1,263

(I’ve previously blogged on the inquiry process and the changes that we made in 2012.)

This is without getting into the sizeable increase in the number of continuing legal education seminars that we present, our focus on issues like civility, wellness, and tech competence, and the fact that, now, we resolve most complaints at screening without referring them to disciplinary counsel, thereby freeing up disciplinary counsel to focus on serious misconduct.

But there’s more we can do for you.

I’ve followed the programs implemented in Colorado and Illinois.  Further, I’m a member of the National Organization of Bar Counsel, one of the strongest leaders in the PMBR movement.  I’ve got some ideas.  Stay tuned.

For now, remember: the future of regulation is proactive.

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