Regulation of Lawyers without the Code, the Rules, or the Restatement: Or, What Do Honor and Shame Have to Do with Civil Discovery Practice?
Regulation of the legal profession, Law governing lawyers, Model Code of Professional Responsibility, Restatement of the Law Governing Lawyers, Anthony Kronman, The Lost Lawyer, Nonlegal sanctions on civil discovery, Sharon Krause
Agency | Civil Procedure | Legal Ethics and Professional Responsibility | Legal Profession
One of the most striking things to notice when "looking back" on the regulation of the legal profession is the relative absence of enforceable legal sanctions for unethical behavior by lawyers. Before the promulgation in 1970 of the ABA's Model Code of Professional Responsibility, regulation of the legal profession was largely a matter of a fraternal body taking care of its own, and occasionally expelling miscreants. Now, of course, there is a complex body of law, enforced by courts and regulatory authorities with overlapping jurisdiction, that governs a substantial amount of the day-to-day activities of lawyers.
The hypothesis I explore in this essay is that there are nonlegal, generally informal mechanisms available by which lawyers control one another, from within the profession, rather than relying on formal, legal, externally imposed systems of rules. Moreover, these nonlegal methods do a pretty fair job of maintaining stability and order under some circumstances.
Wendel, W. Bradley, "Regulation of Lawyers without the Code, the Rules, or the Restatement: Or, What Do Honor and Shame Have to Do with Civil Discovery Practice?" (2003). Cornell Law Faculty Publications. 487.
Published in: Fordham Law Review, vol. 71, no. 4 (March 2003).
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This article pre-dates the author's tenure at Cornell Law School.