Juridification and Regulating the Modern Lawyer
To say that lawyers are everywhere is only a slight exaggeration, yet the legal ethics regimes tasked with regulating the profession do not contemplate most of what modern lawyers do. As this Article explains, a major reason for this is juridification, a process describing (i) the sheer growth in the volume and increasing specificity of new laws, (ii) the increase in the authority and reach of judicial dispute resolution, and (iii) the proliferation of law-like procedures and legalistic decision-making in non-juridical organizations. Interestingly, this expansion of lawyer influence occurred against the backdrop of a countertendency in lawyer regulation. Legal ethics regimes self-consciously moved away from expansive, aspirational rule-setting to—with the advent of the American Bar Association’s Model Rules of Professional Conduct (“Model Rules”)—narrow rules that articulate only minimum standards of conduct. Put simply, at the very same time that lawyers began suffusing more and more of public life, the legal profession’s regulatory apparatuses became more insular. I argue that these two forces—juridification and the retreat of legal ethics to minimum dictates—have rendered legal ethics regimes largely unresponsive to a significant proportion of lawyerly activity, including activity with great capacity to produce social harm. I conclude by suggesting some interventions.
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