Who should regulate the legal profession? The legislature or the judiciary? The standard answer is that to some degree both must participate and that in California we have far more legislative regulation than most states do.
I'm leery of legislative regulation, given that, imho, so much of what comes out of our state legislature is symbolic legislation designed primarily to serve the re-election needs of incumbent legislators. I realize that regulation solely by the judiciary isn't perfect either. It could be too friendly to lawyers and subject to regulatory capture by the lawyers who participate in the state bar. Still, I'd strongly prefer that we as a profession, acting through authority granted by the Supreme Court of California, took the lead in regulating the profession in the best interests of the public and the clients.
Yet, if the judiciary can't or won't get the job done, I suppose the legislature needs to fill the vacuum. Let me give some concrete examples. In California, we tell our lawyers that advanced costs must go in a trust fund but we don't quite say that advance fees must go there; we tell lawyers that it's preferable if the advanced fees go there. If we can't get clarity on that point, why shouldn't the legislature shoulder aside our high court and get the job done?
Another example: our conflicts rule does not say that taking on a matter adverse to a current client is constitutes a conflict of interest. Many times I've heard and read that the rule was supposed to say that but the critical subparagraph was inadvertently deleted. True, before and after our current rule 3-310 was enacted we had cases holding that it was a conflict, and 3-310 does say that if you're adverse to a party it would create a conflict to begin representing that party on another matter. (That's the current client rule in the reverse order of how it usually comes up.) Conceding all that, we've never had our high court issue a three sentence order adding the basic current client rule to 3-310. Why not? If they won't, shouldn't the legislature step in and do the job?
I've sometimes heard that because we have legislative regulation of lawyers the high court is hesitant to trench on the prerogatives of the legislature. But the codification of our law of lawyering, in Business & Professions Code §6068, wasn't meant to be comprehensive. It wasn't even a broad framework. It was a poetic lawyers' oath that found its way into a statute. (For more details see the draft article by David McGowan.) I'm hopeful that in the wake of the recent turmoil here, the high court will take a more active role in promulgating a broad framework of the law of lawyering, for the benefit of the public, the clients, and the profession.