by Michael Kennedy, Esq.
The Future: Some Thoughts
The following are reflections spawned by
a discussion between Michael Kennedy, Bar
Counsel, and Kevin Ryan of the VBA held
on December 9, 2015. Kevin and Mike discussed some of the ways in which the profession will changes in the coming years,
and the implications of those changes for
attorney regulation and professional responsibility. Mike offered the following as
a response to a question about the trends
or kinds of changes he might expect to see
in the legal profession in the next decade
or so.
Management-Based Regulation
With respect to attorney discipline and
regulation, I see courts and regulatory authorities shifting resources from reacting to
misconduct to models described as “proactive practice management based regulation.” I am attending the annual meeting
of the National Organization of Bar Counsel in February. One of the programs is on
“PMBR.” The brochure describes the program like this:
The traditional approach to attorney
regulation in the U.S. is chiefly reactive. Rules of Professional Conduct
are established, and lawyers are subject to discipline if their conduct fails
to comply. Several states and provinces are developing complementary approaches to the traditional model that
will hopefully protect the public and reduce client complaints against their attorneys. Many have already heard the
term “Proactive Management Based
Regulation” or “PMBR.” Such programs tend to focus on the responsibility of law firm management to implement policies, programs and systems—
in short, an ‘ethical infrastructure’—designed to prevent misconduct and unsatisfactory service.
This is similar to what the Vermont Supreme
Court and Professional Responsibility Board
have already done. In 2012, the Professional Responsibility Program had two full-time
prosecutors and a part-time bar counsel.
Now, the PRB employs a full-time bar counsel and 1.5 FTE prosecutors. By shifting resources, the program has placed a greater
emphasis on education and prevention, in
the