Article. Abstract:
North
America is the common law world's last bastion of traditional lawyer
self-regulation. In the United States and in common law Canada, lawyers
make and enforce almost all of the rules which govern legal service
delivery. These regulatory regimes are also distinctive in their (i)
maintenance of a single, unified occupation of "lawyer," (ii) insulation
of law firms from non-lawyer ownership, and (iii) near-exclusive
regulatory focus on individual lawyers as opposed to law firms. Other
wealthy English-speaking countries (the UK, Ireland, Australia and New
Zealand) have gradually abandoned all of these elements of traditional
lawyer regulation over the past 40 years.
Why have North American
lawyers and legislators resisted such reforms and maintained
traditional self-regulation? One school of thought is that lawyers have
defended traditional self-regulation in order to protect their own
interests. However, North American lawyers supported by functionalist
sociologists respond that traditional self-regulation protects the
interests of clients and the public by upholding important "core
values". This article seeks to elucidate this public interest theory,
through a new reading of the legal and sociological literature. The
thesis is that professionalism and independence are the two allied but
conceptually distinct core values which animate the public interest
theory of traditional lawyer regulation.