As Lawyers, We Must Further the Public Interest

As a self-regulated profession, we are obligated to ensure that legal regulations further the public interest. As the Preamble [12] to the American Bar Association (ABA) Model Rules of Professional Conduct states:

The legal profession’s relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. . . . Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves. (Emphasis added.)

Let’s unpack the meaning of this paragraph. What does it mean to be a self-regulated profession? What does “the public interest” mean? And are we living up to our responsibility to ensure our regulations are “conceived in the public interest”?

Lawyers Regulate Themselves

Unlike other professions that are licensed and regulated by the legislative and/or executive branches of government, the licensure and regulation of lawyers are handled by the judicial branch.

The highest court of each jurisdiction adopts ethical codes of conduct and requires attorneys to abide by these codes or be subject to discipline. In promulgating the state’s ethical code, most state supreme courts follow, in large part, the ABA Model Rules of Professional Conduct.

The ABA Model Rules, and any amendments thereto, are adopted by the ABA House of Delegates on the recommendation of various committees of lawyers. (Only one nonlawyer served on the commissions that drafted the Rules of Professional Conduct and its predecessor Code of Professional Responsibility and on the Commission on Ethics 20/20 that recommended revisions.)

Similarly, committees of lawyers picked by each state supreme court review the ABA Model Rules or amendments and recommend ethical rules for the state supreme court to adopt. And, of course, the justices serving on these state supreme courts have the credentials and experience of practicing lawyers.

Thus, ethicist Deborah L. Rhode commented in her book In the Interests of Justice: Reforming the Legal Profession (Oxford University Press, 2000) that “the public’s interest has played too little part in determining professional responsibilities. Too much regulation of lawyers has been designed by and for lawyers.”

Similarly, enforcement of the Model Rules is primarily the province of lawyers. Each state has bar counsel who take in client complaints and prosecute lawyers who allegedly violate the Model Rules.

Although disciplinary hearing panels may include a member of the general public, those members are generally handpicked by the bar counsel. In the end, the bar counsel prosecutes attorneys and recommends court discipline to their state supreme court, which may include suspending or revoking the licensure of errant attorneys.

What Is the Public Interest?

The public interest refers to collective concerns shared by all in society. My copy of Black’s Law Dictionary defines the public interest as “something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected.”

Americans at large have an interest in protecting their legal rights. And those rights are primarily protected by lawyers. It stands to reason, therefore, that attorney regulations “conceived in the public interest” would be drafted to facilitate the ability of the community at large to access quality legal services. Thus, “the public interest” is much broader than “public protection” or “client protection” against unscrupulous or incompetent attorneys.

A pointed examination of the meaning of the public interest in terms of attorney regulation comes from Stephen Mayson, a professor of law at the Centre for Ethics and Law, University College London. Mayson conducted an independent review of the regulatory framework for legal services in England and Wales since the Legal Services Act of 2007.

He wrote in a 2020 report that “the primary objective for the regulation of legal services should be promoting and protecting the public interest.” He went on to explain:

For this purpose, ‘the public interest’ should be understood as an objective to secure the fabric of society and the legitimate participation of citizens in it. In this sense, sector-specific regulation is particularly justified to ensure:

a) that the public good of the rule of law, the administration of justice, the international standing and economic contribution of our courts and legal services, and the wider interests of UK society, are preserved and protected; and

b) that regulation secures the private benefit of appropriate consumer protection, where incompetent or inadequate legal services could result in harm or detriment to citizens, and particularly where such harm or detriment could be irreversible or imperfectly remedied.

The distinction between the two limbs is important, but it is worth highlighting that the second limb cannot be achieved without the first. In our approach to regulation, we must be sure to emphasise, and not to lose sight of, the fundamental constitutional importance of the rule of law and the independent, effective administration of justice. . . . The public interest objective therefore encourages regulation to consider systemic risks to the rule of law and the administration of justice, and to society and the economy in general, as well as to those who might be parties to a provider-client relationship.

Stephen Mayson, Reforming Legal Services: Regulation Beyond the Echo Chambers, (Centre for Ethics and Law, University College London, 2020).

Here in the United States, our Model Rules mostly describe and prescribe a subset of the consumer protection “limb”: the relationship between attorneys and their clients. Protection of existing clients is emphasized.

Other than in the Preamble, there is no reference in the Model Rules to preserving and protecting the public interest in the first sense articulated by Mayson: the rule of law, the administration of justice, the international standing and economic contribution of our courts and legal services, and the wider interests of our society. However, these considerations are of paramount importance in the increasingly global, interconnected, and legally complex world we inhabit.

And most of us agree with Mayson in principle that the strength of the fabric of our society depends on the active participation of its members. The Preamble to the Model Rules exhorts lawyers to “seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession . . .” and to “further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority” (Preamble [6], emphasis added).

These hortatory principles have been followed by many lawyers working to improve access to the legal system and the quality of legal services. Nonetheless, the public’s waning confidence in the rule of law and its lack of support for our legal institutions is alarming.

Fading Confidence in Our Legal Institutions

Multiple studies over the past several years have shown the public’s confidence in the rule of law and our justice system isn’t as strong as we may think it is—or should be. In 2020 the Institute for the Advancement of the American Legal System (IAALS) published Public Perspectives on Trust and Confidence in the Courts, a report in which a majority of participants expressed concerns about the fairness of the current civil process based on perceptions of systemic racial or gender bias, differential treatment based on financial ability, and judicial biases.

Compared to those in other countries, Americans do not have adequate access to affordable legal services. The World Justice Project’s 2020 Rule of Law Index  ranks the United States as 109 out of 128 countries on the factor measuring whether civil justice systems are accessible and affordable, and 115 out of 128 on whether civil justice is free of discrimination. On this metric, the United States has experienced an embarrassing multi-year slide downward.

In terms of participating in our legal institutions, the public is increasingly shut out or opting out. According to the Legal Services Corporation’s 2017 Justice Gap Report, more than 86 percent of low-income Americans received inadequate or no assistance when facing critical civil legal issues such as personal safety, divorce, child custody and support, debt, employment, or foreclosure.

Similarly, several state task forces or commissions, including in California, Utah, Florida, and Michigan, have conducted surveys of their populations and found similar gaps between the number of people who experience a problem with a legal solution and those who receive legal help.

The National Center for State Courts’ 2015 report The Landscape of Civil Litigation in State Courts showed that 76 percent of civil matters filed in courts across ten urban areas had at least one self-represented litigant. At the same time, rural lawyers are disappearing and “legal deserts” are becoming more common outside of urban centers (Mark C. Palmer, “The Disappearing Rural Lawyer,” 2Civility, Aug. 27, 2019).

The global pandemic has exacerbated the precarious situation of many low- and middle-income Americans and the failings of the legal system to help those who could benefit from legal assistance. Myriad legal problems have been held at bay during the closures of the last year and will be revealed as the pandemic recedes. Experts are predicting that the need for legal assistance in the areas of domestic relationships, housing, employment, and consumer debt will skyrocket. The stress on existing legal infrastructure will be great.

What Is the Connection to Attorney Regulation?

Many attorneys will admit there is a problem with public confidence in our legal system and acknowledge an access-to-justice gap. The increasing number of self-represented litigants and decreasing demand for lawyer-supplied consumer legal services are obvious.

However, many also point out a lack of evidence that changing the rules of professional conduct will alleviate these problems. Further, they argue that the rules shouldn’t be changed without a guarantee that the amendments will eradicate the access-to-justice gap. This puts the cart before the horse.

The existence of the access-to-justice gap provides compelling evidence that the first aspect of Mayson’s definition of the public interest—the public good of the rule of law and effective administration of justice—is not being met by current regulations. Are our rules of professional conduct the sole cause? Unlikely. But if we think over-regulation is contributing to the public’s disengagement from the legal system, we are obligated to recalibrate those regulations to find out.

Of course, we will not know for certain whether changing certain rules will better serve the public and would-be consumers until after they are changed. But we do have an obligation to do a better job of meeting the public’s legal needs.

Therefore, it is unacceptable to cling to the current regulatory scheme and wash our collective hands of the increasing number of citizens who make their way through legal challenges without help.

We have no moral high ground here. As Mayson wrote in Reforming Legal Services:

There is something deeply uncomfortable about the current regulatory approach that says, in effect: “Law is too complex for ordinary citizens, and too important to society, to allow anyone other than qualified lawyers to be regulated for its provision. . . .”

Worse still, that same approach also says: “But if you cannot afford a regulated lawyer, then we are prepared to leave you to your own devices.” At this point, presumably, the law is no longer to be regarded as “too complex or too important.”

We are then knowingly driving people into doing nothing, or representing themselves, or having to rely on hard-pressed and precariously funded providers of pro bono or voluntary services, or engaging someone who is not regulated.

As multiple state supreme courts are studying or implementing regulatory reform, there is reason for optimism. The profession may actually be open to reconceiving attorney regulations in the public interest rather than in the parochial or self-interested concerns of the bar.

As we embark on this journey, it may be productive to consider American philosopher John Rawls’s classic thought experiment. He proposed the “original position” or “veil of ignorance” experiment to discover the principles of a free, equal, and moral society. In the original position, a person is asked to propose the principles of a just society but from behind a “veil of ignorance,” not knowing ahead of time what position he or she will hold in that society. If the decision-makers about attorney regulation were asked to choose behind a “veil of ignorance,” what rules about the delivery of legal services would they adopt? It is likely that a disinterested decision-making process would yield results different than the current rules formulated by the group with the greatest personal stake in the result. If the process for regulating lawyers were reevaluated, would a disinterested panel agree that excluding the public served the public interest?