PMBR: Improving the Profession

Benjamin Franklin said in 1736 that “an ounce of prevention is worth a pound of cure.”¹ That maxim holds as true today as it did in the 18th century. Public disciplinary proceedings, while sometimes necessary, come at a high cost to the victimized clients, the lawyer and the legal profession. Nothing is lost and many things are gained by pursuing PMBR programs to proactively prevent the necessity of public discipline.

Lawyer Disciplinary Systems:

The Basics To understand PMBR and its origins, it is important to briefly examine lawyer disciplinary systems.

In this country, lawyer discipline is a state-by-state endeavor: the highest court of each state regulates the practice of law within its jurisdiction. The purpose of lawyer discipline is to protect the public and maintain the integrity of the legal profession.

Given the dual goals of the disciplinary system, the concept behind avoiding public discipline of lawyers, where possible, is not a new one. In 1989, the McKay Commission was created to “conduct a national evaluation of lawyer disciplinary enforcement and create a model for responsible regulation in the future.”² The McKay Report recommended that state supreme courts supplement what was then a mostly prosecutorial model of lawyer regulation with one that not only protected the public through disciplinary enforcement when required but also helped lawyers avoid the public disciplinary process where possible.³

In the years following the McKay Report, in furtherance of these outcomes, many jurisdictions have implemented a variety of programs designed to avoid the outcome of public discipline where appropriate. These programs range from diversion programs to ethics inquiry guidance to free CLE programs provided by lawyer regulators.

The PMBR Concept

The PMBR concept takes the dual goals of protection of the public and maintenance of the integrity of the legal profession in a different direction.

The PMBR concept initially grew from a 2001 New South Wales, Australia, law permitting the stock of incorporated legal practices (ILPs) to be sold publicly and thus have both lawyer and nonlawyer owners.⁴ The law, the New South Wales Legal Profession Act of 2004 (Act), required ILPs to take steps to ensure compliance with the Act; these steps included PMBR is designed to help lawyers improve the ethical infrastructures of their law offices, reduce complaints to lawyer disciplinary authorities, and enhance lawyers’ provision of competent and cost-effective legal services. the appointment of a legal practitioner to be responsible for the management of the ILP and required the implementation of “appropriate management systems” (AMS) to ensure that law firms maintained ethical infrastructures.⁵ Because the Act did not define AMS, representatives of various interested professionals worked together to develop a strategy of education toward compliance with the Act, which required the designated directors of the ILPs to complete a self-assessment process evaluating the ILPs’ compliance with 10 specific objectives for sound legal practices.⁶

"PMBR is designed to help lawyers improve the ethical infrastructures of their law offices, reduce complaints to lawyer disciplinary authorities, and enhance lawyers’ provision of competent and cost-effective legal services."

Professor Ted Schneyer, now a professor emeritus at the University of Arizona College of Law, is the author of the seminal piece that articulated the concept of an ethical infrastructure of law firms and is considered to be one of the experts on this topic.7 Schneyer described the New South Wales program as a prototype for “proactive management- based regulation” and he noted that ethical infrastructures consist of the policies, procedures, systems and structures that ensure that lawyers in firms comply with their ethical duties and that nonlawyers behave in a manner consistent with lawyers’ duties.⁸

The 10 specific objectives for sound legal practices, originally developed for the New South Wales program, have been the foundation of the PMBR programs studied and implemented in the United States. They are as follows:

1. Negligence (providing for competent work practices)
2. Communication (“providing for effective, timely, and courteous communication”)
3. Delay (“providing for timely review, delivery, and follow-up of legal services”)
4. Liens / File Transfers (“providing for timely resolution of document/file transfers”)
5. Cost Disclosure / Billing Practices / Termination of Retainer (“providing for shared understanding and appropriate documentation on commencement and termination of retainer along with appropriate billing practices during the retainer”)
6. Conflict of Interests (“providing for timely identification and resolution of ‘conflict of interests,’ including when acting for both parties”)
7. Records Management
8. Undertakings (monitoring compliance with notices, orders, rulings and directions)
9. Supervision of Practice and Staff
10. Trust Account Regulations⁹

PMBR in the United States

Using these 10 objectives as a starting point, the ABA Standing Committee on Professional Regulation, the Center for Professional Responsibility, and the National Organization of Bar Counsel joined other groups in holding workshops to begin educating U.S. regulators and bar leaders about the possibilities inherent in PMBR programs. These workshops began in 2015.

By 2017, the Illinois Supreme Court adopted a mandatory PMBR mechanism for lawyers who do not possess professional liability insurance. That same year, the Colorado Supreme Court Advisory Committee initiated a voluntary PMBR program. While the specific implementation of the PMBR model is not a one-sizefits- all program, the objective of both states’ PMBR programs is consistent with the foundational premises of PMBR, which is to assist in minimizing the disciplinary and malpractice risks that lawyers face in practice.10 As of the writing of this piece, Illinois and Colorado are the only two jurisdictions that have adopted PMBR programs, but many other jurisdictions are studying the implementation of similar programs (see sidebar, this page).

At the direction of the Illinois Supreme Court, the Illinois Attorney Registration and Disciplinary Commission (ARDC) developed a PMBR course, which is an interactive educational program. First launched through the ARDC’s website in 2018, the course is four hours long, may be taken in segments, and is available as a free CLE course to any Illinois lawyer.11 The course is required prior to registration for those Illinois lawyers in private practice who do not have malpractice insurance. (If a lawyer purchases malpractice insurance prior to registration, the PMBR course is not required.) The reasoning behind the requirement that lawyers without malpractice insurance must take the PMBR course is that lawyers without insurance do not complete the insurance application process, which requires an assessment of the various risks associated with the practice of law.

Other States and PMBR

Several states are considering or are in the process of developing PMBR programs. Wisconsin is scheduled to roll out its program by the end of 2019. Tennessee is in the process of developing a voluntary program like that of Colorado. Maine has informally implemented a program. The following states are also studying and considering PMBR programs:

• Alabama
• Arizona
• Florida
• Georgia
• Missouri
• New Mexico
• North Carolina
• Ohio

In order to alleviate concerns that the disciplinary agency would use data from the program in the context of lawyer discipline, the Illinois Supreme Court adopted rules to ensure that all information relating to the self-assessment will be “confidential, except for the fact of completion of the self-assessment, whether the information is in possession of the Administrator or the lawyer.”12 Furthermore, the information is not subject to discovery.13 Some of the topics covered in the original Illinois PMBR course include the following:

1. Technology and Ethics
2. Client Relationships
3. Fees, Costs and Billing
4. Trust Accounts and Record Management
5. Conflicts of Interest
6. Diversity and Inclusion
7. Attorney Wellness

The original launch was very well received, with 74 percent of the participants rating the program as excellent or very good and 18 percent rating it as good.14 As required by the Illinois Supreme Court’s rules, the ARDC will launch a new PMBR course for Illinois lawyers for the 2020 registration period.15

Colorado’s PMBR program, called the Colorado Lawyer Self-Assessment Program, is voluntary. This online program allows the lawyer to earn up to three hours of CLE credit by completing 10 self-assessments. The Colorado Supreme Court amended the Colorado Rules of Civil Procedure to include the self-assessment program and make the results of the selfassessment confidential.16

Conclusion

Preventing lawyer misconduct proactively benefits all stakeholders. State regulators continue to examine whether a PMBR system is right for their state.

Endnotes

1. See Am. Bar Ass’n, Resolution and Report 107, at 1 (Aug. 12, 2019) (PMBR), www.americanbar. org/content/dam/aba/directories/policy/ annual-2019/107-annual-2019.pdf. 
2. Am. Bar Ass’n, Report of the ABA Commission on Evaluation of Disciplinary Enforcement 11 (1990) [hereinafter McKay Report]. 
3. Id. at 11–12. 
4. Id. at 8. 
5. Susan S. Fortney & Thalia Gordon, Adopting Law Firm Management Systems to Survive and Thrive: A Study of the Australian Approach to Management-Based Regulation, 10 U. St. Thomas L.J. 152, 153 (2012). 
6. Id. at 153 (citations omitted). 
7. Id. at 154. 
8. Id. (citations omitted). 
9. Id. at 162–63 (citations omitted). 
10. See McKay Report, supra note 2, at 4. 
11. See Britney M. Bowater, Proactive Management Based Regulation: ARDC Self-Assessment Course Will Provide Illinois Lawyers with the Tools for Better Practice Management, Illinois Courts Connect (July 25, 2017), www.illinoiscourts.gov/Media/ enews/2017/072517_ARDC.asp. 
12. Ill. Sup. Ct. R. 756(e)(2). 
13. Id. 
14. Matthew Hector, ARDC Reports Positive Early Reaction to Lawyer Self-Assessment, 106 Ill. B.J. 10 (Mar. 2018). 
15. Ill. Sup. Ct. R., supra note 12. 
16. See Colo. Sup. Ct. R. 256. For additional discussion about the importance of maintaining the confidentiality of this information, see also Susan Saab Fortney, The Role of Ethics Audits in Improving Management Systems and Practices: An Empirical Examination of Management-Based Regulation of Law Firms, 4 St. Mary’s J. Legal Malpractice & Ethics 112, 141–46 (2014).

ABA Resolutions on PMBR

The ABA Young Lawyers Division (YLD) recognized that more young lawyers are opening their own practices and may lack necessary practice- management skills as well as the ability to identify or assess where they need additional skills training and education. The YLD identified the importance and value of PMBR programs to assist these lawyers. In 2019, the YLD Assembly approved a PMBR resolution at its 2019 Midyear Meeting in Las Vegas.

A subsequent collaboration between the ABA’s Standing Committee on Professional Regulation and the YLD resulted in Resolution 107 (almost identical to YLD’s resolution), which was adopted by the House of Delegates at the ABA Annual Meeting in August of 2019. The resolution urges jurisdictions’ highest courts to study and adopt jurisdictionally appropriate PMBR programs to enhance compliance with applicable rules of professional conduct and supplement existing disciplinary enforcement mechanisms. This resolution was cosponsored by the Government and Public Sector Lawyers Division and the National Organization of Bar Counsel, among other groups. To read the full text of the resolution, visit.