Attorney Regulation Reborn?

Illinois lawyers may have heard that the ARDC is moving toward a model of
attorney regulation that includes proactive management-based regulation (“PMBR”). That model has been in place in New South Wales, Australia, for several years, and several North American jurisdictions are looking into adopting it in some form. The principle behind PMBR involves a shift from the traditionally reactive investigation-and-prosecution model to one that involves soliciting information from practitioners about their practices, and educating those practitioners toward compliance with the Rules of Professional Conduct – and professional best practices generally – prior to any complaint, investigation, or prosecution.

It sounds like a welcome change. ARDC could become more of a boon to practitioners who may struggle to keep up with the ever-changing practice of law. The shift to PMBR is also intended to help solo and small practitioners establish succession plans, which are what they sound like – documents that spell out what will happen to a lawyer’s cases and practice in the event of the lawyer’s sudden incapacitation. Helping lawyers put such plans together sounds like a worthy goal, too.

But how is it all going to work? The ARDC has been using the reactive model since its inception in the early 1970s. Year in and year out, it has received many thousands of requests for investigations of attorneys, and it has prosecuted an average of 100-120 lawyers per year for many different kinds
of transgressions. As noted in an earlier post, the number of prosecutions
alleging that a lawyer acted dishonestly has spiked in recent years (69 cases
of the 85 cases – 81 percent – filed between September 1, 2015 and August 31,
2016). Those charges have been proven by clear and convincing evidence in some cases, but in others, the Court has curtailed the range of conduct that is
considered potentially dishonest. See, e.g., In re Cutright, 233 Ill.2d 474 (2009), in which the Court declined to hold that dishonest conduct could be shown by proof of recklessness.

What does this regulatory environment mean for the attempt to adopt PMBR? Literature studying the New South Wales PMBR program suggests that the regulatory agency there may have erred by not creating enough of a separation between its proactive, education-focused staff and its reactive
enforcement staff. Lawyers who participated in the program noted even small
details that tended to blur the distinction between helpful PMBR materials and
upsetting investigatory matters: the agency used the same its traditional stationery, previously reserved for enforcement matters, for communications as to both. That caused recipients to receive even helpful or neutral PMBR-related mail with dread. One participant remarked: “when you get a letter from the Legal Services Commissioner you don’t say yippee here’s my tax refund, this is a nice thing. It’s ‘oh who’s upset now.’” See Susan Saab Fortney, Back to the Future: Designing and Improving a System of Proactive Management-Based Regulation to Help Lawyers and Protect the Public, to
be published in the 2016 Journal of the Professional Lawyer, Susan Saab Fortney, 2016 J. PROF’L LAW., American Bar Association (2016), p. 11, fn. 87. A true sentiment on any continent, isn’t it?

Another, more general problem that the New South Wales program encountered involved an overall reluctance by some of the participants to take an active role in seeking assistance from the PMBR program. As with the stationery issue, the problem seemed to stem from the too-close relationship between the PMBR regulatory staff and the enforcement division. As one manager of a New South Wales firm evocatively put it: “I’d be rather loath[ ] to call the Legal Services Commissioner and say, look I’ve got this management problem. I mean, it’s a bit like ringing the Tax Office and saying I’ve got a problem with my tax, look how much cash I’ve got.” Fortney, id. at fn. 90.

In recent CLE presentations, ARDC staff has discussed the implementation of PMBR as having a goal of creating a free, self-directed resource that will assist practitioners in evaluating their practices and planning for the future. The overarching goal is to alleviate practice conditions that could lead to misconduct before they arise. One tool that ARDC will likely use is known as a “self-assessment,” a survey developed in different ways in both New South Wales and Nova Scotia (also a PMBR-adopting jurisdiction). The New South Wales version received some criticism from participants as being too heavy on checkboxes and too light on useful substantive information; the Nova Scotia form may be more comprehensive and thus helpful. The nature and extent of the form ARDC might use is not yet known.

Again: the goals of PMBR are noble. But consider: the ARDC’s determination that PMBR is needed was based, at least in part, on demographic and practice-related information provided in last year’s registration process. In CLE presentations, staff have noted with emphasis the number of solo practitioners, and the number of practitioners who said they either had no
succession plan, or were not sure whether they had one. The latter elicits
surprised laughter, but should it? Think of the Australian lawyers who
responded uneasily to their regulatory agency’s helpful efforts. That’s what’s at the root of “not sure” responses here as well. The people who regulate your
license are asking if you have a formal-sounding document relating to your
practice. Did you miss a requirement somewhere along the line? If you’ve
thought about the future of your practice, have you created a document that
meets the ARDC’s requirements? What if you haven’t? How do you answer this one question without triggering a problem? “Not sure” is as good an option as any, so you click that and hope for the best. Those who went through that
understandable thought process are not know-nothings; they’re lawyers who don’t know what it means to be in the midst of a PMBR rollout.

We, as a profession, should watch this process carefully, and like our Australian colleagues, we should be ready to offer comment and critique of the process. It would also behoove practitioners to implement succession plans and other best practices before the ARDC makes it mandatory to
do so, or before it begins any intensive inquiry into lawyers’ practices and
procedures. Illinois practitioners could benefit from a regulatory shift toward
positive skill-building and away from punitive enforcement, but we – as members of a self-regulating profession – owe it to ourselves to monitor the
implementation of that shift carefully.

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