The Jim Sandman approach shows the most promise.
“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.” This above sentence comes from ¶12 of the Preamble of the Rules of Professional Conduct.
As states increasingly take up regulatory reform, state Supreme Court justices and administrators inevitably encounter significant resistance from members of the bar. What’s the most effective way to navigate around this resistance so that we can fulfill our professional obligations?
I think the Jim Sandman approach shows the most promise, as it is simple, honest, and will short-circuit a lot of unproductive debate.
Consider the following remarkable exchange between Gordon Smith, Dean of BYU Law, and Jim Sandman, President Emeritus of the Legal Services Corporation, former MP of Arnold & Porter, and currently Distinguished Lecturer at Penn Law. The exchange took place at an IAALS event on June 29, 2020. The topic, in brief, was how to cope with lawyers who oppose regulatory change because of potential negative effects on their practice—i.e., “parochial and self-interested concerns.”
Gordon Smith: “One of the questions I’m getting from local attorneys, which is not always framed as a question … [but] sometimes a little more exuberantly framed as an objection, is that what we’re doing in Utah [with the regulatory sandbox] is going to destroy the legal profession.
“I had one person tell me that the reason he went to law school was to get a monopoly over legal services … and that expanding the number of providers and opening it up to non-JDs … was going to undermine his practice and the practice of others who had relied on this system to actually entice them into the practice of law.
“Thus, I would curious to hear your response to that and … how you would explain it to the bar because it certainly seems to me that our job would be easier if we can enlist the bar, rather than sort of drag them kicking and screaming through this, which seems to be our present situation.”
Jim Sandman: “I think that because of the huge unmet need for legal services, including among people who can afford to pay something, the concern that bar member expresses is ill-founded. But that’s not the heart of my answer.
“My honest answer, after nine years at the Legal Services Corporation that radicalized me, is “I don’t care.” But I wouldn’t say that, because that’s not a way to make friends and influence people. What I think is important is to have that debate in public and not just in the private councils of the bar. Have that debate in public under the sponsorship of a state Supreme Court in open session. Let that lawyer say that in front of a public audience, and see what happens.
“[In conjunction with that,] read the Preamble to the Rules of Professional Conduct. We have an obligation to the public. Our obligation is not to protect the self-interest of the legal profession. [From the Preamble [12]:] ‘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.’]
“As a practical matter, if we’re going to get someplace, it will be because state Supreme Courts, not bar associations, take ownership of their role in regulating the profession and do the process of regulating in public proceedings where parochial attitudes like that have to be expressed in front of an audience that includes more than just lawyers.”
To summarize, the Jim Sandman approach is to discuss proposed regulatory change “in public under the sponsorship of a state Supreme Court in open session” and for state Supreme Courts to “take ownership of their role in regulating the profession,” which must be done to advance the public interest.
Fortunately, the Justices in Utah and a few other jurisdictions appear to be on board.