This morning, I blogged on the Vermont Supreme Court’s proposal to create a Bar Assistance Program that would be administered by bar counsel. Here’s why I support the proposal to expand the assistance that the Professional Responsibility Program and bar counsel already provide.
A New Approach to Attorney Regulation
For too long, the prevailing thought was that an attorney regulation program had to focus on discipline to be effective. States devoted more resources to responding to misconduct than to preventing it. The focus, then, was not on enhancing the provision of competent legal services, a focus that, really, is the best form of (a) public protection; and, (b) promoting confidence in the bar’s ability to self-regulate.
Times have changed.
ABA Resolution 105 (2016)
In 2016, the ABA House of Delegates approved Resolution 105. In it, the ABA adopted “Model Regulatory Objectives for the Provision of Legal Services” and encouraged states to do the same. Among the objectives, the “efficient, competent, and ethical delivery of legal services.” While Resolution 105 did not come out of the wellness movement, its intent applies.
Simply, Resolution 105 recommends that each state supreme court decide what it wants the objectives of its attorney regulation program to be. Per the report submitted to the House of Delegates in support of the proposed resolution, identifying and adopting regulatory objectives “serves many valuable benefits,” including:
- Defining the purpose and parameters of the regulatory program;
- Identifying the goals and objectives of the regulatory program; and,
- Enhancing trust that lawyers have in regulators, as well as the trust and confidence that the public has in the profession’s ability to regulate itself.
The ABA adopted 10 model regulatory objectives. They include the “[e]fficient, competent, and ethical delivery of legal services.”
The National Task Force on Lawyer Well-Being
Next, in 2017, the National Task Force on Lawyer Well-Being issued The Path to Lawyer Well-Being: Practical Recommendations for Positive Change (“The Report”). The Report kickstarted the attorney wellness movement.
I will not go through the entire report. It is important, however, to review its purposes. There are 5, each of which is listed in a letter written by the Task Force’s co-chairs when the report was announced. Three are key here:
- Eliminating the stigma associated with help-seeking behaviors;
- Emphasizing that well-being is an indispensable part of a lawyer’s duty of competence;
- Taking small, incremental steps to change how law practice and how lawyers are regulated to instill greater well-being in the profession.
I want to emphasize the third: changing how lawyers are regulated to instill greater well-being in the profession. Indeed, The Report itself recommends that regulators “develop their reputation as partners with practitioners.”
ABA Resolution 107 (2019)
Last summer, the ABA House of Delegates adopted Resolution 107. The resolution urges states to adopt Proactive Management Based Regulation (“PMBR”). In short, PMBR encourages a system of attorney regulation that focuses more on promoting compliance than it does on responding to misconduct. A core objective of PMBR is to promote the provision of competent legal services.
Vermont was ahead of the curve. We adopted a version of PMBR in 2012. As I blogged here, we know that it works. Essentially, we – thanks to you – have created a culture of compliance.
A New Paradigm
The profession has come to recognize that proactive regulation is the future. Gone are the days of a monolithic focus on responding to misconduct. Now, it’s time for each state to look within, and identify, announce, and implement the objectives of its own regulatory system.
Since 1999, bar counsel’s role has been to “provide referrals, educational materials, and preventive advice and information to assist attorneys to achieve and maintain high standards of professional responsibility.” Supreme Court Administrative Order 9, Rule 9. To me, that necessarily includes providing assistance, referrals, and preventive advice on behavioral health issues.
As a profession and a Professional Responsibility Program, our objectives should include doing whatever we can to help lawyers to develop and maintain the ethical infrastructure needed to provide competent legal services. In that well-being is an aspect of competence, that necessarily includes making well-being an objective.
Here are two statements from the Executive Summary submitted with Resolution 107 when it was proposed:
- “PMBR programs encourage professionalism and civility, and change for the better the relationship between the regulator and regulated.”
- “PMBR programs are not one-size-fits-all, may be crafted to meet the needs of each
jurisdiction, and are reasonable in cost.”
In my view, Vermont is well-suited to adopt the proposed Bar Assistance Program. We’re small enough to make it work and can add it without any corresponding increase to attorney licensing fee. Further, affirmatively decoupling assistance from discipline will only serve to improve the relationship between the regulator and the regulated.
These are among the reasons that I support expanding the assistance that the Professional Responsibility Program and bar counsel already provide to include assistance of the type traditionally referred to as “lawyer assistance.”
We might not get every starfish back to the water, but it will mean the world to the one that we do.
