Sneaking Around in the Legal Profession: Interjurisdictional Unauthorized Practice by Transactional Lawyers

The quiet clubbiness that once characterized the practice of law in the United States is rapidly disappearing as new realities announce their clamorous arrival. Evaporating at a great rate—judging speed of change in historical terms—are many traditionally accepted and functionally important features of the legal profession of another day. Disappearing or dead are such sturdy former fixtures as the exclusivity of traditional bar self-policing. Also gone is the at-one-time widely acknowledged hegemony of the American Bar Association as the exclusive source of lawyer code pronouncements on lawyer disciplinary regulation. Courts, under the thrall of bar associations, at one time claimed the exclusive right to regulate lawyers. Although one still finds the rhetoric of judicial exclusivity, the reality is that lawyer regulation is increasingly found in the form of legislation or administrative regulation, some of which is sought out by lawyer organizations themselves. Efforts of an older time to develop a strong and widely shared moral sense across the professional community seem to have been abandoned as a bar project, particularly in metropolitan areas. The bar seems to have retreated, if sometimes reluctantly, from activities that seemed at the time, and which seem now, to be aimed more at protecting lawyer self-interest rather than at protecting clients or the public. Some, but hardly all, of the transformations accompanying the rapid pace of change in the American legal profession are applaudable developments. Wearing my own sentiments on my sleeve (and I suspect I am not alone), I do not regret the passing over of such dysfunctional features of the traditional bar, such as the conspiracy of silence, under which lawyers tacitly agreed not to sue or serve as expert witness against other lawyers; the non-enforcement of lawyer codes -- with the trendy code intended merely to serve, as one media critic has put it, as lip service to our better selves ; and hypocritical differentiation in such matters as bar discipline (i.e. winking at the faults of lawyers in large firms, while focusing on largely victimless offenses, such as advertising and solicitation by small-time practitioners); and character determinations in bar-admission committees that seemed to have a class, race, or gender-based bias

Parts and Wholes: The Integrity of the Model Rules

As important as is each of its parts, the 1983 Model Rules of Professional Conduct was, of course, meant to function as a whole. At the very least, the parts were presumably intended to work well with one another, sketching a regulatory apparatus that would guide both lawyers subject to it and courts and regulators administering it in a coherent and consistent manner. To a large extent the Model Rules made significant headway in this respect, continuing the movement toward more explicit and articulated regulation of the profession begun by their predecessor, the Model Code of Professional Responsibility. Yet, the Model Rules have struggled toward perfection, rather than attaining it. In its shortcomings it simply shares features of other works of mere mortals. I explore here one of those areas of effort in which the Model Rules reflect defective drafting, that of presenting a regulatory text characterized by integrity. I use that term in the sense of wholeness, of not being at war with oneself. I do not imply anything about intentional deviousness or the like, a wholly different sense in which integrity is also sometimes employed. As will be seen, in several respects the Model Rules significantly lacks integrity with respect to common or at least predictable, if uncommon, situations. I do not refer here to points too shrouded in the mists of the future or too exotic to permit or warrant clear statement. Instead, I refer to the Model Rules\u27 violation of what we might refer to as the integration principle-the common-sense requirement that each part of a prescriptive document interconnect well and clearly with every other. Pursuing the ideal of the integration principle, a drafter will attempt to avoid confusion by neither seeming to omit coverage of an important point in apparently complementary provisions or perhaps worse, giving duplicate and potentially conflicting prescriptions for a common issue. This canvas of the Model Rules under the lens of the integration principle is not, of course, intended to be exhaustive, although I hope to have captured the most important instances. I also wish not to be understood to insist that all of the issues I discuss here should have been detected and adequately dealt with before the Rules were locked into their present form in 1983. Neither the Kutak Commission, its reporter, nor the ABA House of Delegates had entire freedom and leisure to draft carefully and precisely. The inescapably untidy business of formulating standards through the political and bureaucratic sausage factory that is the ABA only makes one marvel to the contrary, that the document emerged in a form as nearly integral as it is. In a process such as the one that produced the Model Rules, only the reporters, active members of the drafting Kutak Commission, and perhaps a few critics would have been able to pay sufficient attention to the document as a whole to have noted integration problems in the document as it transmogrified into its final form. And, of course, paying attention and bringing noticed problems of incoherence to the attention of others does not always suffice to persuade others with other agendas to join forces to achieve appropriate language changes in a document caught up in what was essentially an unwieldy political-parliamentary process. Those seeking changes in drafts, such as those offering floor amendments in the ABA House of Delegates, typically insist on wording that responds to their own concerns, not the concern of achieving overall documentary integrity. In any event, even in a more relaxed, less politicized atmosphere, it would have been nearly miraculous if the Model Rules had not emerged from even that idealized process without some defects of integrity that only experience in applying and studying them would bring clearly to view