Each of the States and the District of Columbia regulates the practice of law. In some 30 of them, the bar is integrated, which means that a lawyer must be a bar member to practice in that jurisdiction. The others establish rules of professional conduct and impose discipline but are otherwise voluntary.
Because each state independently regulates the practice of law by those in its jurisdiction, the states are well positioned to serve as the “laboratories of democracy” Justice Brandeis spoke of. They can regulate or not as they see it in their best interest.
The break-out session of the Professional Responsibility and Legal Education Practice Group will look at four issues that are currently percolating in those legal laboratories:
(1) In August 2016, the American Bar Association proposed a revision to Rule 8.4(g) of its Model Rules of Professional Responsibility. The new rule would dramatically expand the scope of disciplinary authority, as to both the speech and the activities of lawyers. That rule is not self-executing. Instead, it will be up to each of the licensing jurisdictions to decide whether or not to adopt it. To date, at least eleven states have rejected or abandoned efforts to impose Proposed Rule 8.4(g) on their members, and only Vermont has adopted it. Proposals to adopt it are under consideration in several jurisdictions. What should the remaining jurisdictions do?
(2) In 2018, in Janus v. AFSCME, the Supreme Court held that public sector union members cannot be compelled to subsidize union speech with which they disagree. The Court also observed that forced union membership has First Amendment problems, given that, “The right to eschew association for expressive purposes is . . . protected” by the First Amendment. In the wake of Janus, lawsuits and administrative petitions have been filed in several states seeking to turn the mandatory, integrated bar into mandatory and voluntary components. Is an integrated bar necessary, or even the better alternative?
(3) One goal of many, if not all, bar associations is to make sure that people who need legal representation can get it. There are, however, gaps in representation for a variety of reasons. Several states are seeking to fill such a gap in particular areas of practice by allowing non-lawyers to represent clients. Is this a good way to fill a gap in the delivery of legal services?
(4) We are in the early stages of learning how legal analytics—using technology to predict how particular courts will decide cases—will affect the way lawyers do their work. Does such legal analytical work constitute the practice of law?
To hear experts discuss these important issues, please join us on Saturday, November 16, 2019, at 11:00 am ET, in the State Room or via live stream on the Federalist Society website.