Legal Ethics and Regulatory Legitimacy: Regulating Lawyers for Personal Misconduct

ALTERNATIVE PERSPECTIVES ON LEGAL ETHICS, Francesca Bartlett, ed., Routledge, Forthcoming, Fall 2010

37 Pages Posted: 23 Jan 2009 Last revised: 11 Jun 2010

See all articles by Alice Woolley

Alice Woolley

affiliation not provided to SSRN

Date Written: January 22, 2009

Abstract

Law societies' regulatory authority to discipline lawyers for personal misconduct is generally accepted. This paper questions this regulatory scope. It suggests that as currently applied, the regulation of personal misconduct is incoherent. It rests on doubtful empirical assumptions about the existence of "character" and the predictability of human conduct across highly variant circumstances. In exercising this power law societies are engaged in regulatory conduct; they are using the power they are given by the state to curtail the behaviour and interests of some lawyers for the benefit of the reputation of the profession as a whole. Doing so must be justified, and on the two main normative theories of regulatory action - public interest economic and democratic theory - no obvious justification for this regulation arises. Public choice theories provide some insight into why law societies regulate in this way (because they can) but are more a source of illegitimacy than of legitimacy.

The paper further argues that the general methodology employed to analyze regulation in this paper is applicable to the question of how regulation of lawyers should be assessed and developed. Regulation of lawyers should be empirically sound; if it rests on empirical claims, those claims must not be doubtful or falsifiable, and if they are, then some other basis for the regulation must be set out. Regulation of lawyers should address the imperfections in the market for legal services and, in particular, the extent to which those imperfections create incentives and opportunities for unethical conduct. Finally, regulation of lawyers should be democratically legitimate. It should be based on more than the claim that the regulation takes place because of the fact of state power, and it should be directed at fostering the proper performance of the important role that lawyers play in the functioning of the democratic legal system.

Keywords: legal ethics, regulatory theory, personal misconduct

Suggested Citation

Woolley, Alice, Legal Ethics and Regulatory Legitimacy: Regulating Lawyers for Personal Misconduct (January 22, 2009). ALTERNATIVE PERSPECTIVES ON LEGAL ETHICS, Francesca Bartlett, ed., Routledge, Forthcoming, Fall 2010, Available at SSRN: https://ssrn.com/abstract=1331598

Alice Woolley (Contact Author)

affiliation not provided to SSRN

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