Democratizing Legal Services by Snyder Laura;

Author:Snyder, Laura;
Language: eng
Format: epub
Tags: undefined
Publisher: Lexington Books/Fortress Academic
Published: 2012-08-15T00:00:00+00:00

The repeated ethical breaches that Cameron Davidson committed at Lane and Waterman could happen with any lawyer and with any firm. But it is much easier to imagine them happening in a regulatory environment that is rules based, proscriptive, and focused on the individual, than it is to imagine them happening in a regulatory environment that is proactive, management based, and focused as much on the entity as on the individual.

This explains, at least in part, the interest that regulatory authorities in Colorado and Illinois have expressed, if not (yet) explicitly in entity regulation, than at least in PMBR. As explained in part I, in late 2015, the Office of Attorney Regulation Counsel of the Colorado Supreme Court formally announced that “Colorado is studying an approach to attorney regulation that is centered on prevention, not solely discipline” that, if enacted, “would be the first of its kind in this country.”[57] The program is called the “Colorado Proactive Management Based Regulation (PMBR) program,” and the announcement describes its benefits as including “improve[ed] management and culture of law firms,” “prevent[ing] client and public harm” rather than focusing on discipline after the fact, and “improve[ing] the relationship between the regulator and the regulated because the regulator focuses on helping to improve the practice as a whole and reduce complaints while shifting the regulatory focus away from discipline alone.”[58] Notably, the announcement describes the research of Hofstra professor Susan Saab Fortney, which “revealed that lawyers who completed the self-assessment process ended up revising their firm systems, policies and procedures, or adopting new ones, and thereby strengthened their firm management through such self-assessment.”[59]

In the absence of the either prior or simultaneous implementation of PMBR and, especially, entity regulation, it is difficult to imagine that Model Rule 5.4 could be modified in order to permit alternative structures. On the other hand, the reverse is quite easy to imagine. That is, entity regulation as well as PMBR can be adopted without taking the extra step of also permitting for alternative structures. This is because PMBR and, especially, entity regulation are natural and necessary elements in a shift toward permitting alternative structures. In addition, neither entity regulation nor PMBR appear to raise the same polemical objections that alternative structures do. That is, while it would be incorrect to claim that they were adopted in England and Wales and in Australia without any controversy at all, the discussions were not nearly as impassioned as they were on the topic of ABSs in, most notably, England and Wales.[60]

It is likely that regulators in Nova Scotia and Colorado (and perhaps also Illinois) have recognized this, and it is why, for the time being, they are focused on the development and implementation of PMBR (and, in Nova Scotia, also entity regulation) without, for the most part if at all, even mentioning the incendiary term “ABS” or its synonyms. In all likelihood, they see two benefits in proceeding in this manner: (i) in developing and implementing PMBR and entity regulation independently, their jurisdictions

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