the effect of institutional choice on rule outcomes

THE DEVELOPMENT OF FEDERALPROFESSIONAL RESPONSIBILITY RULES: THE

EFFECT OF INSTITUTIONAL CHOICE ONRULE OUTCOMES

Jason Mehta*

Introduction .................................................. 58I. M ethodological Framework ............................ 63

A. Identifying the Possible Institutional Actors ........ 64B. Defining the Appropriate Qualities of an

Institutional Actor ................................ 65II. Comparative Institutional Authority ................... 66

A . C ongress ......................................... 67B. Administrative Agencies ........................... 68C. The Courts .......... ........................ 69D. Self-Regulatory Institutions ....................... 70

III. Comparative Institutional Competence ................. 72A . C ongress ......................................... 73B. Administrative Agencies ........................... 75C . The C ourts ...................................... 77D. Self-Regulatory Institutions ....................... 80

IV. Comparative Institutional Expertise .................... 83A . C ongress ......................................... 85B. Administrative Agencies ........................... 86C . The C ourts ...................................... 87D. Self-Regulatory Institutions ....................... 88

V. Comparative Institutional Impartiality ................. 90A . C ongress ......................................... 91B. Administrative Agencies ........................... 92C . T he C ourts ...................................... 94D. Self-Regulatory Institutions ....................... 95

C onclusion ................................................... 97

* J.D., 2007, Harvard Law School, magna cum laude; B.A., 2003, UC Berkeley, high hon-

ors. Jason Mehta is a first-year associate at WilmerHale in Washington, D.C. The author wishes

to thank Professor Daniel Coquillette for his thoughtful and insightful comments on the core

values animating professional responsibility. Professor Coquillette's course on legal ethics in-

spired this article. In addition, the author wishes to thank his family for their consistent gui-

dance and support.

58 CARDOZO PUB. LAW, POLICY & ETHICS J [

"[U]nless we do better with the difficult issues of institutional choice,any reforms, changes and proposals will remain illusory or cosmetic.We will continue to cycle through the same proposals with the samearguments. Today's policy will always have feet of clay and be re-placed by yesterday's rejected panacea, which somehow reappears(without blemishes) as tomorrow's solution."'

INTRODUCTION

In July, 2002, after a spate of embarrassing and costly corporatefailures, 2 the United States Congress passed the Sarbanes-Oxley Act("Sarbanes-Oxley" or "the Act"), a robust legislative package that prom-ised to dramatically reshape corporate governance.3 At the time of theAct's signing, President George Bush proudly declared that Sarbanes-Oxley would result in the "most far-reaching reforms of American busi-ness practices since the time of Franklin Delano Roosevelt."4 In addi-tion, academic leaders, policymakers, and business executives heapedcommendations on the Act. 5

At the heart of Sarbanes-Oxley was a concerted Congressional ef-fort to empower the Securities and Exchange Commission ("SEC") withthe tools to systematically restructure and regulate unscrupulous corpo-

I Neil K. Komesar, Exploring the Darkness: Law, Economics, and Institutional Choice, 1997Wis. L. REv. 465, 474 (1997).

2 See, e.g., Mark J. Roe, Delaware's Competition, 117 HARV. L. REv. 588, 590 (2004) (not-

ing that Congress passed the Sarbanes-Oxley Act "in reaction to the corporate governance fail-ures at Enron and WorldCom."). While the root causes of these corporate failures are outsidethe scope of this paper, it is worth repeating the words of former SEC Commissioner Harvey J.Goldschmid, who remarked, "The corporate and financial scandals of the 1990's and early2000's are the most serious that have occurred in this country since the scandals of the GreatDepression. We have witnessed a systemic failure." See Harvey J. Goldschmid, SEC Comm'r,Orison S. Marden Lecture before the Association of the Bar of the City of New York: A Lawyer'sRole in Corporate Governance: The Myth of Absolute Confidentiality and the Complexity ofthe Counseling Task (Nov. 17, 2003). These corporate failures cost investors an estimated $24billion in 1999 alone. See George B. Moriarty & Phillip B. Livingston, Quantitative MeasuresOf the Quality of Financial Reporting, 17 FIN. EXECUTIVE 53 (July/August 2001).

3 Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat. 745 (2002) (codified invarious sections of 11, 15, 18, 28, and 29 U.S.C.).

4 President George W. Bush, Remarks at Signing Ceremony for Sarbanes-Oxley Act of2002 (July 30, 2002), available at http://www.whitehouse.gov/news/releases/2002/07/20020730.htm; see also Elisabeth Bumiller, Bush Signs BillAimedat Fraud in Corporations, N. Y. TIMES,

July 31, 2002, at Al.5 See Meg Richards, Corporate Reform, CINCINNATI POST, July 28, 2003, at B7 (noting the

almost universal support for the Sarbanes-Oxley legislation).

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2007] INSTITUTIONAL CHOICE ON RULE OUTCOMES 59

rate governance practices. It was the expansive reach of the Act whichdifferentiated Sarbanes-Oxley from previous congressional corporate re-form legislation. While the Act did require that the SEC revise anti-quated corporate security requirements,' the Act also directed the SECto promulgate new rules regarding the minimum standards of profes-sional conduct of attorneys who practice before the SEC. 7 While Con-gress did not articulate precise attorney conduct rules (leaving thatinstead for the SEC to fill in), Congress did, however, require that theSEC's rules include provisions mandating that an attorney report evi-dence of a material violation of securities laws to corporate officers, au-diting committees, or to a corporation's Board of Directors.8 Inaddition, Sarbanes-Oxley equipped the SEC with the power to bringadministrative adjudications against attorneys. The adjudicatory powersthat Congress granted the SEC included the power to censure, suspend,or bar any person from appearing before the SEC Commission.9 Thiswas the first time that Congress granted the SEC authority to regulatethe professional conduct of attorneys.'0

The significance of Sarbanes-Oxley, therefore, extends beyond theAct's reforms geared towards securities regulation. Indeed, the Act po-tentially portends a significant evolution in the development of legalprofessional responsibility rules. Indeed, in the words of onecommentator:

Sarbanes-Oxley and the contemporaneous debate as to the proper du-ties of attorneys representing public companies have brought the legalprofession to a crossroad. Who will write the future rules governing the

6 See, e.g., Roberta S. Karmel, Realizing the Dream of William 0. Douglas-The Securities

and Exchange Commission Takes Charge of Corporate Governance, 30 DEL. J. CoRI,. L. 79, 90,100 (2005) (describing the delegation to the SEC, and noting that, in enacting Sarbanes-Oxley,Congress was motivated by "effort[s] by the SEC to obtain more power over public companies

and to facilitate prosecutions of business for derelictions that were already illegal ').7 15 U.S.C. § 7245 (West Supp. 2002).8 Id. It is useful to note that the SEC complied with these Congressional directives through

the promulgation of a series of professional responsibility rules. See 17 C.F.R. pt. 205 (2002);see also Press Release, SEC Adopts Attorney Conduct Rule Under Sarbanes-Oxley Act (Jan. 23,2003), available at http://www.sec.gov/news/press.2003-13.htm. Among other things, theserules require corporate lawyers to report the evidence of a material violation "up-the-ladder."

9 15 U.S.C. § 78d-3(a) (West Supp. 2002).10 See Harvey L. Pitt, SEC Chairman, Remarks Before the Annual Meeting of the American

Bar Association's Business Law Section (Aug. 12, 2002), available at http://www.sec.gov/news/speech/spch579.htm (stating that the regulation of attorney conduct is "uncharted territory for[the SEC]").


conduct of attorneys in corporate representation - agencies of the federalgovernment or the organized bar and the state judiciaries? Or willcourts write these new rules through their adjudication of private law-suits by injured shareholders? 1

In light of this pending "crossroads," it is important to note thatCongress' delegation to the SEC was a deliberate choice.12 Congress'choice to defer to an administrative agency (rather than to draft theprofessional responsibility provisions itself or defer to the federal judici-ary or a self-regulatory institution, such as the American Bar Associa-tion) is interesting and can provide some useful insight into the questionof "institutional choice" with respect to the drafting of professional re-sponsibility rules.

This question of institutional choice has become the source of im-mense interest in the legal community over the past few decades.1 3 Inparticular, the role of "institutional choice" with respect to the rulesgoverning the legal profession has emerged and captivated the attentionof a host of legal scholars.14 In this regard, Professor David Wilkins wasthe first to pave significant ground in this topic in 1992 when he pub-lished a study positing the comparative strengths and weaknesses of dif-ferent institutions in enforcing and imposing sanctions on lawyers. 15

While Wilkins provided some very useful insight into the proper institu-tions to enforce sanctions for lawyer misconduct, his article failed to

11 David Beck, The Legal Profession at the Crossroads: Who Will Write the Future Rules Gov-

erning the Conduct of Lawyers Representing Public Corporations?, 34 ST. MARY'S L. J. 873, 876(2003) (emphasis added).

12 Importantly, many have challenged whether Congress' consideration of the Sarbanes-

Oxley Act can be considered "deliberative." See, e.g., R. William Ide, Post-Enron Corporate Gov-ernance Opportunities: Creating a Culture of Greater Board Collaboration and Oversight, 54 MER-

CER L. REv. 829, 831 (2003) (noting that "[t]he resulting legislation is in parts disjunctive,

duplicative, and lacking in regard for federalism considerations and distinctions between policyand administration"); see also Susan J. Stabile, Enron, Global Crossing, and Beyond: Implicationsfor Workers, 76 ST. JOHN'S L. REV. 815, 831 (2002) (concluding that Sarbanes-Oxley "movedthrough Congress with record speed in an effort to bolster the confidence of investors") (empha-sis added). Nonetheless, it seems clear, based on the Act's specific statutes, that Congress in-tended to delegate more responsibility to the SEC.

13 See generally, NEIL K. KOMESAR, IMPERFECT ALTERNATIVES: CHOOSING INSTITUTIONS

IN LAW, ECONOMICS, AND PUBLIC POLICY 5 (University of Chicago Press, 1994) (noting that"[i]nstitutional choice [is] essential for law and public policy.") [hereinafter KOMESAR, IMPER-

FECT ALTERNATIVES].

14 See, e.g., Ted Schneyer, Legal Process Scholarship and the Regulation of Lawyers, 65 FORD-

HAM L. REv. 33 (1996) [hereinafter Schneyer, Legal Process Scholarship].15 David B. Wilkins, Who Should Regulate Lawyers?, 105 IAiv. L. REv. 799 (1992).

[Vol. 6:57


address the more basic question about who should be drafting the basicprofessional responsibility rules. 16 Rather than view this as a criticism ofWilkins' work, this point reveals that for much of the legal profession'shistory, the topic of institutional choice in terms of who would promul-gate professional responsibility rules was a non-issue. It was simply as-sumed that self-regulatory institutions, like the American BarAssociation ("ABA"), would promulgate model rules or codes of ethics,and courts would either adopt these rules or modify them slightly forthe individual states. 17 In this regard, "bar organizations largely controladmission and disciplinary structures, although the judiciary exercisesnominal supervision.... [A]lthough non-lawyers often have representa-tion in the process, the profession exercises control. The organized bargenerally has defined the relevant standards through committee recom-mendations and legislative lobbying."' 8 In many ways, the dominanceof the ABA in setting the rules was primarily "a process largely ofdefault."' 9

Despite the general acceptance of the role of the ABA, some havebegun to analyze the institutional choice question in more detail. Inparticular, Professor Andrew Kaufman sent a major shockwave through-out the legal profession in 2000 when he suggested significant reformsin the promulgation of professional responsibility rules.2" ProfessorKaufman suggested that, in resolving conflicts between state and federalprofessional responsibility rules (specifically rule 4.2, which forbids alawyer from communicating with an adverse party known to be repre-

16 In this regard, Professor Wilkins' article noted that "it is necessary to assume a single set of

rules [ ] will be interpreted and applied by all enforcement officials." Id. at 810. Wilkins de-

fended this "obviously exaggerated" assumption by noting that the assumption was "not com-pletely unrealistic. Over the years, the ABA [American Bar Association] has been quite

successful in convincing judges, legislators, and administrative officials to consider its codes asauthoritative." Id. at 810, n.36.

17 See DEBORAH L. RHODE, PROFESSIONAL RESPONSIBILITY: ETHICS BY THE PERVASIVE

METHOD 41 (2d ed. 1998) (noting that "courts frequently have deferred or delegated authority

to bar associations."); see also Wilkins, supra note 15, at 810 (noting that "the ABA's ModelRules of Professional Conduct and Model Code of Professional Responsibility continue to con-

stitute the most influential sources of professional norms.").18 Wilkins, supra note 15, at 810.

19 Daniel R. Coquillette and Judith A. McMorrow, Toward an Ecclesiastical Professional Eth-

ics: Lessonsfrom the Legal Profession, in CHURCH ETHICS AND ITS ORGANIZATIONAL CONTEXT:

LEARNING FROM THE SEX ABUSE SCANDAL IN THE CATHOLIC CHURCH (J. Bartunek et al eds.,2005).

20 See Andrew L. Kaufman, Who Should Make the Rules Governing Conduct of Lawyers in

Federal Matters, 75 TUL. L. REv. 149 (2000).


sented by counsel without the consent of that counsel), the state andfederal judiciaries should take charge to draft new, consistent guide-lines. 21 In addition, he suggested a reduced role for self-regulatory insti-tutions, such as the ABA. 22

Professor Kaufman received mixed reactions to his paper. Not sur-prisingly, many within the ABA viewed his proposals as unjustly limit-ing self-regulation. 23 Against this backdrop, Sarbanes-Oxley presentsanother opportunity to consider questions of institutional choice withrespect to the development of federal attorney conduct rules (even if thejury is still out on whether Sarbanes-Oxley's corporate reform mandateswere effective). 24 Thus, this paper attempts to analyze Congress' choiceand, more importantly, suggests "institutional choice" considerations forfuture professional responsibility rule developments and developers.

Specifically, Part I of this paper explains the methodological frame-work for this institutional choice analysis, and then articulates whichinstitutional actors ought to be considered in this analysis (specifically,

Congress, the SEC, the federal courts, and self-regulatory institutions,like the ABA). Inherent in this analysis is an explanation for why thispaper examines only federal institutional actors as opposed to state ac-tors. After identifying the range of possible institutional actors, Part Iarticulates the criteria and qualities that an institutional actor shouldideally possess. Specifically, these criteria include an actor having therequisite authority, legitimacy, expertise, and impartiality to enact pro-

21 See id. at 163 ("I also believe that there should be more global cooperation between the

state and federal judiciaries. The conference of State Court Chief Justices, in cooperation with

the relevant committees of the federal Judicial Conference, ought to figure out how to superin-

tend, or even to operate, the process of rewriting the rules of professional conduct-a task thatthe ABA has taken upon itself. . . . Such model rules would, in my view, be more likely to

command nationwide respect and thus lead to greater nationwide uniformity than rules recom-

mended by the ABA.").22 See id. ("[T]he ABA, a professional and political organization of private lawyers, is not the

appropriate party to control the rulemaking process."). Kaufman suggested the transformation

of the role of the ABA from lawmakers to advisors.23 See, e.g., Judith A. McMorrow, The (F)utility of Rules: Regulating Attorney Conduct in

Federal Court Practice, 58 SMU L. REv. 3, 38 (2005) ("The federal judges appear to embrace

what can be called a minimal encroachment approach to attorney regulation. Federal judges

typically engage in that amount of regulation minimally necessary to achieve their goal of effi-

cient and fair resolution of the case at hand.").24 See, e.g., Stephen Taub, What's a Sarbox? Say Many Shareholders, CFO MAGAZINE, Oct.

21, 2005 at 5, available at http://www.cfo.com/article.cfm/5074590/c-507 4 6 6 7 (finding that

55 percent of U.S. investors believe that financial and accounting regulations governing publicly

held companies are too lenient, even after Sarbanes-Oxley. Moreover, 11 percent believe the

legislation has actually made corporate communication less transparent).

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fessional responsibility rules. These four qualities ensure that any rulespromulgated will be acceptable and appropriate to our legal system andour citizenry. Part I, thus, introduces these terms and seeks to definethem in a general sense. Parts II-V proceed to assess the comparativestrengths and weaknesses of different institutional actors for each char-acter trait. In particular, these sections look at the adequacy and effec-tiveness of Congress, administrative agencies, the federal courts, andself-regulatory institutions with respect to these aforementioned quali-ties. Finally, this paper offers some concluding thoughts on the ques-tions of institutional choice, and presents some considerations thatmerit attention when choosing the appropriate institutional actor tospearhead the development of future professional responsibility rules.

I. METHODOLOGICAL FRAMEWORK

Before engaging in any institutional choice analysis, it is importantto articulate the parameters of the inquiry. As a threshold matter, thisanalysis looks only at the federal professional responsibility rules. It isimportant to note that, for the most part, states (rather than the federalgovernment) currently enact and enforce most professional responsibil-ity rules. 25 While states play an undoubtedly important role in promul-gating professional responsibility rules, the fundamental questions ofinstitutional choice models will likely be clouded if one considered thecomparative strengths of both federal and state actors.

Although an exclusively federal analysis might be seen as having amore limited use as compared to both a federal and state analysis, thereis use to such an analysis. For example, should a day arise when thefederal government or federal administrative agencies commit them-selves to federalization of professional responsibility rules,26 this paperwill have answered the basal questions about the appropriate federal ac-tors to spearhead the development of the regulatory responses. Through

25 See Leslie C. Levin, The Emperor's Clothes and Other Tales About the Standards for Imposing

Discipline Sanctions, 48 Am. U. L. REv. 1, 3-4 (1998) (noting that since the 1970s, "[s]tatecourts have become more actively involved in lawyer discipline"); see also Schneyer, Legal ProcessScholarship, supra note 14, at 37 (noting that "[l]awyer regulation is complicated by the existenceof parallel institutions at the state and federal levels. Though lawyers are still licensed by states,the growth in federal practice is moving federal institutions closer to the center of the system.").

26 See, e.g., Judith A. McMorrow, Rule 11 and Federalizing Lawyer Ethics, 1991 B.Y.U. L.

REv. 959, 970 (1991) (describing the emergence of the federal courts in imposing their ownview of proper professional conduct through application of Fed. R. Civ. P. 11).


this analytical inquiry, one can surmise recommendations to further de-velop and strengthen professional responsibility rules.

Given this focus, this paper also assumes a singular model of fed-eral legal profession regulation (as opposed to a system of multiple regu-latory codes by different states, a system of no federal regulation, ormarket competition as a form of regulation).2 7 Against this backdrop,we can now identify the range of possible institutional actors.

A. Identifying the Possible Institutional Actors

As a general matter, there are a vast array of possible institutionsthat could regulate the conduct of lawyers. Reflective of this ambiguity,many academic commentators have a hard time identifying the possibleset of actors that should be tasked with developing ethical rules. Forexample, Professor Ted Schneyer has previously suggested that threeclasses of institutions could regulate lawyers.2 8 In his model, he sug-gests: (1) legal institutions "with broad missions that include some inci-dental regulation of lawyers; ' 29 (2) private institutions that exertinfluence over lawyers; 3° or (3) bar organizations, such as bar associa-tions establishing ethics rules, and bar agencies and disciplinary coun-sel.' In a slightly different model, Professor Wilkins has suggestedidentifying institutional actors on the basis of function, rather than onthe holistic attributes of the actors. Wilkins' four functions are discipli-nary controls, liability controls, institutional controls, and legislativecontrols. 3 2 Given the multitude of possible institutions and enforce-ment systems, Professor Peter Joy is probably correct when he describesthe system of attorney regulation as "increasingly complex. 33

27 See, e.g., Linda S. Mullenix, Multiform Federal Practice: Ethics and Erie, 9 GEO. J. LEGAL

ETHICS 89, 129 (1995) ("Although the need for uniform standards of professional conduct forfederal practitioners seems evident, promulgating yet another set of professional responsibilityrules is not a happy prospect. However, as the inchoate and inconsistent standards of applicablelaw create more problems in multiforum federal litigation, it seems inevitable that federal courtswill move toward developing a uniform system of rules.").

28 See Schneyer, Legal Process Scholarship, supra note 14, at 35.

29 Id. at 35-36.30 Id. at 36.31 Id. at 37.32 See Wilkins, supra note 15, at 805.

33 Peter Joy, Happy (?) Birthday Rule 11: The Relationship Between Civil Rule 11 and LawyerDiscipline: An Empirical Analysis Suggesting Institutional Choices in the Regulation of Lawyers, 37Loy. L.A. L. Ruv. 765, 768 n. 11 (2004).

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Despite this complexity, this paper will primarily look at the fourtraditional actors who have regulated the legal profession: Congress,34

administrative agencies, 35 the federal courts, 36 and self-regulatory insti-tutions.3 7 While "[i]nstitutions can be defined and aggregated in anynumber of ways depending on the focus for study,"38 these four institu-tional actors are generally thought to be the primary vehicles for regula-tory development, and thus will be analyzed in this paper.

When speaking about an "institutional actor," it is important tonote that institutions are more than mere structural entities - they areultimately the aggregation of individual people. That is, when we speakof the federal judiciary as an actor, we are talking about both the formaljudicial structure and also the compilation of thousands of federaljudges. Thus, in evaluating the comparative strengths and weaknesses ofany actor, we ought to think of these qualities from both an institutionaland an individual perspective.

Given the basic parameters of this comparative assessment, we cannow begin to formulate and articulate which qualities make an effectiveinstitutional actor. The next subsection deals with this issue inparticular.

B. Defining the Appropriate Qualities of an Institutional Actor

In determining the essential attributes of an institutional actor, it ishelpful to first identify the basic goals of attorney conduct rules. Boththe courts and the American Bar Association 39 have previously articu-lated three rationales for professional responsibility rules: the protectionof the public,4" the protection of the administration of justice, 41 and the

34 For a recent example of congressional regulation of the legal profession, consider the

Sarbanes-Oxley Act, 15 U.S.C. § 7245 (West Supp. 2002) (requiring that the SEC "issue rules,in the public interest and for the protection of investors, setting forth minimum standards ofprofessional conduct for attorneys appearing and practicing before the Commission in any way

in the representation of issuers").35 In the Sarbanes-Oxley Act, it was the SEC that ultimately promulgated attorney conduct

rules. See 17 C.F.R. pt. 205 (2002).36 See generally Joy, supra note 33 (discussing and advocating a larger role for the federal

judiciary in shaping the contours of legal responsibility rules).37 See supra notes 17-19 and accompanying text.38 See KOMESAR, IMPERFECT ALTERNATIVES, supra note 13, at 9.39 See ABA STANDARDS FOR IMPOSING LAWYER SANCTIONS, Standard 1.1 Commentary

(1986).40 See, e.g., In re Abrams, 689 A.2d 6, 12 (D.C. 1997).

41 See, e.g., In re Curran, 801 P.2d 962, 964 (Wash. 1990) (stating that sanctions mustmaintain public confidence in legal institutions and foster respect for the law).

66 CARDOZO PUB. LAW, POLICY & ETHICS J.

preservation of confidence in the legal profession.42 These three goalsare underscored in almost all rule codifications.

Therefore, when trying to assess which actor would produce the"best" set of professional responsibility rules, we should ultimately seekan actor who can develop a coherent and clear code that actually effectu-ates the stated goals of professional responsibility rules. That is, theactor involved in drafting the rules should (a) have authority to makerules; (b) be structurally and institutionally competent to formulate acode of ethics; (c) have some expertise in drafting rules; and (d) shouldexhibit a degree of impartiality (rather than succumb to pre-existing biasor partiality).43

Each of these four qualities-authority, competence, expertise, andimpartiality-are important criteria, and will ultimately determine anactor's efficacy. It is useful to note that "[b]ecause no institution per-forms any important regulatory task perfectly, and because many taskscould conceivably be reassigned, the proper research question is oftenone of comparative competence."44 Given these qualities, we can nowturn our focus towards a comparative assessment of how each institu-tional actor fares.

II. COMPARATIVE INSTITUTIONAL AUTHORITY

The first step in an institutional choice model is to determinewhether a particular actor has the requisite authority (or capacity) toenact a set of professional responsibility rules. That is, the thresholdquestion is whether the proposed actor has some inherent authority orpower to enact rules.4 5 While asking the question of institutional au-thority seems somewhat intuitive, it is a fundamental question to ask

42 See, e.g., In re Addams, 579 A.2d 190, 199 (D.C. 1990). While this goal might seem

similar to the previous goal, the "protection of the administration of justice," courts have oftencited this goal distinctly. See Levin, supra note 25, at 18, n. 79.

43 In this regard, much credit should be given to Professor Joan MacLeod Heminway, who

articulated these factors (and others) when considering "institutional choice" models in the "fed-eral corporate governance" context. See Joan MacLeod Heminway, Rock, Paper, Scissors: Choos-ing the Right Vehicle for Federal Corporate Governance Initiatives, 10 FORDHAM J. CoR" & FIN.L. 225 (2005). While Heminway also considered other factors in her analysis (such as transac-tional costs and other forms of competency), these factors have not been included in this discus-

sion. Nonetheless, further analysis could be conducted by applying some of Heminway's factorsto the drafting of legal profession responsibility rules.

44 Schneyer, Legal Process Scholarship, supra note 14, at 33 (emphasis added).45 See Heminway, supra note 43, at 248 (noting that "it is important to review, as a thresh-

old matter, the capacity of" different actors to act as rulemakers).

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because an actor's limited jurisdiction or authority would necessarilylimit that actor from being fully effective at promulgating rules.4 6

Therefore, this "inquiry is a necessary, but insufficient, basis fordeciding" whether a particular actor should be entrusted with draftingprofessional responsibility rules. 47 A note of caution is worth mention-ing at this point: an actor's (relative) lack of authority is not per se fatal.That is, a self-regulatory institution, like the ABA, generally lacks thepower to make binding rules for the legal profession.48 However, thatdoes not mean that we should altogether refuse to consider self-regula-tory institutions as potential actors in the drafting of professional re-sponsibility rules. Rather, this lack of authority implies that there mightbe some comparative weakness to relying on self-regulatory institutions.The implication of self-regulatory institutions' lack of power is discussedin more depth below. 49 To begin, though, one can look at the authorityof Congress to develop a set of legal profession rules.

A. Congress

As a general matter, Congress has expansive inherent authority toregulate the conduct of attorneys who appear before federal tribunals.50

The starting point in this analysis ought to begin with the United StatesConstitution, which grants Congress the power to "ordain and estab-lish" federal courts. 5 1 Additionally, the Constitution provides that Con-gress has the power to impose regulations on these federal courtsincluding the Supreme Court. 52 Taken together, these two explicit

46 See Symposium, Current Issues in Corporate Governance: Federalism and Corporate Govern-

ance, 45 OHIO ST. L.J. 545, 584 (1984) (remarks of Donald E. Schwartz) (noting that"[d]etermining the proper role for federal law in corporate governance is not simply, or prima-rily, an analysis of the power of [various actors], but rather is mainly a consideration of whetherand how those bodies should act.").

47 Heminway, supra note 43, at 248.48 See infra notes 69-70 and accompanying text.49 Id.

50 This sentiment has been confirmed by the U.S. Supreme Court on multiple occasions.The most significant case to reflect this Congressional supremacy is Hanna v. Plumer, 380 U.S.460, 472-74 (1965). See also Jack B. Weinstein, Reform of Court Rule-Making Procedures, 76COLUM. L. REv. 905, 916, 922 (1976).

51 See U.S. CONST. art. III, § 1.52 U.S. CONST. art. III, § 2 ("In all Cases affecting Ambassadors, other public Ministers and

Consuls, and those in which a State shall be Party, the supreme Court shall have original Juris-diction. In all the other Cases before mentioned, the supreme Court shall have appellate Juris-diction, both as to Law and Fact, with such Exceptions, and under such Regulations as theCongress shall make.') (emphasis added).


grants of power provide Congress with ample inherent authority to reg-ulate attorney conduct. If need be, Congress could also rely on theConstitution's Necessary and Proper Clause and the Commerce Clausefor additional textual hooks to justify legal profession regulation. 53

In addition to the Constitution, Congress has the authority to reg-ulate attorney conduct through the Rules Enabling Act. 54 The RulesEnabling Act can be seen as "a compromise of some of the fundamentalissues regarding legislative, as opposed to judicial, rulemaking powers.This act provides legislative authority for judicial rulemaking." 55 Thus,with the Constitution and the Rules Enabling Act, it is quite clear thatCongress has the inherent authority to regulate lawyers, if it wishes.However, the mere fact that Congress can regulate a particular field doesnot necessarily mean that it should actually regulate. Other considera-tions might tilt in favor or against congressional action.

B. Administrative Agencies

Since agencies are derived from congressional delegation, they aregenerally considered "substantively and procedurally subsidiary to" thelegislature.56 As such, agencies can only make binding law if the legisla-ture has first delegated power to the agency.5 7 The fact that agenciesmust rely on Congress for authorization and funding necessarily impliesan inherently limited authority and autonomy. Accordingly, it is un-likely that an agency would ever enact a robust professional responsibil-ity rule codification without congressional support. 8

Furthermore, it is important to recall that agencies are not consti-tutionally enshrined. As such, Congress can circumscribe an agency'sauthority any time it chooses. That is, if Congress is opposed to an

53 See, e.g., Fred C. Zacharias, Federalizing Legal Ethics, 73 TEx. L. REv. 335 (1994) (sug-gesting these additional sources of Congressional power).

54 28 U.S.C. §§ 2071-2074 (2006).55 Judith A. McMorrow & Daniel R. Coquillette, MOORE's FEDERAL PRACTICE, FEDERAL

LAw GOVERNING ATTORNEY CONDUCT § 801.0215] (3rd ed. 2006) (emphasis added).56 See Heminway, supra note 43, at 253.

57 See WILLIAM LYONS & JOHN M. SCHEB II, AMERICAN GOVERNMENT: POLITICS AND

POLITICAL CULTURE 516-17 (3rd ed. 2003) (noting "[t]hrough a series of broad delegations oflegislative power, Congress has transferred to the federal bureaucracy much of its responsibilityfor making and enforcing the rules and regulations deemed necessary for a technological

society").58 See, e.g., William H. Hardie 111, The Independent Agency After Bowsher v. Synar Alive

And Kicking, 40 VAND. L. REV. 903, 920 (1987) (noting that agencies are very responsive to thegoals of Congress, for fear of losing funding).

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agency or its work product, Congress can reduce funding for the agency,subject the agency to oversight, or-in the most drastic case-simplyrepeal the agency's enabling statute.59

Thus, the ability of agencies to act independently and enact profes-sional responsibility rules is very limited. Indeed, agencies can act onlyafter Congress has expressly given its political blessing.6 This limitedauthority, while not fatal, might cause one to be cautious before relyingon administrative agencies to spearhead the development of federal at-torney conduct rules.

C. The Courts

The federal courts derive their power to regulate attorney conductin two ways: by enacting rules governing attorney conduct and by mak-ing rules through judgments on cases before them.61 For purposes ofthis analysis, though, the focus will rest primarily with the enactment ofa formal set of professional responsibility rules. In this regard, then, theability of the federal courts to enact a set of attorney conduct rules de-rives from the Rules Enabling Act. 62 Section 2071 of the Rules Ena-bling Act grants lower federal courts the power to govern attorneyconduct at the local level. These so-called "local rules" apply only tothat federal court district, and are not considered "uniform" federal rulesof practice. The Supreme Court can proscribe "uniform" federal rulesthrough section 2072 of the Rules Enabling Act.63

While it is beyond reproach that courts have the inherent authorityto regulate guidelines for attorney conduct, courts vary in their willing-ness to actually enact such guidelines. For example, while most local

59 See id. (noting "[y]et another check on the independent agencies by both Congress andthe Executive is the control of funds vested in the two named branches. By refusing to consider

advice from either the Executive or Congress, an independent agency risks presidential veto or adrastic reduction in funding. In addition to threatening an agency's budget, Congress also mayamend or repeal the agency's enabling statute. Although concededly broad, these methods ofmaintaining accountability of the independent agencies are enumerated in the

Constitution ... ").60 See, e.g., supra notes 6-10 and accompanying text (noting that the SEC could only regu-

late attorney conduct for attorneys appearing before the commission once Congress gave its

political blessing).61 See McMorrow & Coquillette, supra note 55, at § 801.02.

62 28 U.S.C. §§ 2071- 2074 (2006).

63 Id. Importantly, uniform federal laws trump over any local law through the "supersession

clause." § 2072 provides that "[a]ll laws in conflict with such rules shall be of no further forceor effect after such rules have taken effect." Id.


district courts have promulgated a set of local legal ethical rules for at-torneys appearing before them, 64 at least eleven districts (as of 1995)had no local rules governing attorney conduct.65 Similarly, while someuniform federal rules of practice govern attorney conduct, 66 the Courthas been somewhat reluctant to exercise its power expansively.67

An important note of caution is worth mentioning here. Whilethe Rules Enabling Act does affirmatively grant the courts a considerableamount of statutory authorization to enact professional responsibilityrules, there is an important limitation built into the Act. Specifically,section 2074 of the Act provides that any uniform federal rule promul-gated by the Supreme Court "shall have no force or effect unless ap-proved by Act of Congress. "68 Thus, Congress has the ability to overseethe Court's proposed rule, and can effectively derail a Court-proposedrule if it wishes. While Congress has largely passed the Court's "uni-form" rules without changes, the fact that the Supreme Court cannotimplement the rules without congressional authorization militates thefederal judiciary's inherent authority.

D. Se/f-Regulatory Institutions

Of all the actors considered, self-regulatory institutions have theleast inherent authority to enact regulations. Indeed, because these in-stitutions are not governmental (at best, they might be considered quasi-governmental given the fact that virtually all jurisdictions havemandatory membership in one of these institutions),69 their regulationsand guidelines are not binding and do not have the force of law. Forexample, when the ABA suggested the Model Code ("the Code"), the

64 See McMorrow & Coquillette, supra note 55, at § 802.06.65 See Working Papers of the Committee on Rules of Practice and Procedure: Special Studies of A

Federal Rules Governing Attorney Conduct, (Studies I, II A, IV, V, VI, Daniel R. Coquillette;

Studies II B, VII, Marie Leary), Study I, at 7 (Admin. Office of the United States Courts 1997)

(cited in McMorrow & Coquillette, supra note 55).66 See Fed. R. Civ. P. 11 (c) (sanctioning attorneys for signing pleadings that are frivolous or

intended to cause harassment); see also Fed. R. Civ. P. 2 6 (g) (allowing sanctions on attorneys

who abuse the discovery process).

67 See McMorrow & Coquillette, supra note 55, at § 801.02[3].

68 28 U.S.C. § 2074 (2006).

69 See, e.g., Patrick Emery Longan, Judicial Professionalism In A New Era OfJudicial Selection,

56 MERCER L. REV. 913, 934 (2005) (describing mandatory state bar associations as quasi-

governmental).

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Code only took effect in states whose judiciary and legislature affirma-tively included the Code in the state's law. 70

Notwithstanding the limited inherent authority of these institu-tions, these institutions have been amazingly successful at having theirguidelines and recommendations adopted by state judiciaries and legisla-tures (who are inherently authorized to enact such professional responsi-bility rules).7' Indeed, most states have adopted all or part of the ABA'sModel Code.72 Even the ABA's recommended attorney disciplinarystandards (which have received considerably less traction in the states)have been expressly adopted by more than a dozen states without anymodification, and dozens of others either rely on or quote the ABAdisciplinary standards. 73

Given the lack of inherent authority of self-regulatory institutionsto actually implement their proposals, one might legitimately questionwhether these institutions should be tasked with the formulation of legalprofessional responsibility rules. Indeed, one can easily imagine a situa-tion where a well-intended ABA code of ethics is modified by the federaljudiciary or legislature. Because the ABA ultimately cannot controlwhat is given "force of law," the ABA's power is necessarilycircumscribed.

At the risk of oversimplification, the preceding subsection can bebriefly summarized in the table below:

70 See Ronald D. Rotunda, Judicial Ethics, the Appearance of Impropriety, and the Proposed

New ABA Judicial Code, 34 HOFSTA L. REv. 1337, 1358 (2006).71 See supra notes 16-19 and accompanying text.72 See Rotunda, supra note 70, at 1358-59 (noting "[t]his 'model' code thus has significant

consequences, particularly because whatever the ABA recommends comes with a presumption ofauthority, and state and federal courts are likely to adopt it.").

73 See Levin, supra note 25, at 33-34.

72 CARDOZO PUB. LAW, POLICY 6- ETHICS j [Vol. 6:57

COMPARATIVE INSTITUTIONAL AUTHORITY SUMMARY

Congress Congress' power under the Constitution (Article Ill, Section 2;"Commerce Clause"; "Necessary and Proper Clause"), coupledwith the Rules Enabling Act, reflects the large inherent authoritythat Congress possesses with respect to promulgating attorneyconduct rules.

ADMINISTRATIVE AGENCIES The authority of agencies is necessarily limited by the extent ofcongressional delegation. An agency only has the power to dowhat Congress has entrusted the agency to do.

THE COURTS Under the Rules Enabling Act, the federal courts have the powerto make both "local" and "uniform" rules of procedure. However,"uniform" rules promulgated by the Supreme Court "shall haveno force or effect unless approved by Act of Congress."

SELF-REGULATORY Self-regulatory institutions, because they are non-governmental,INSTITUTIONS have the least inherent authority to promulgate rules and give

these rules binding effect. In fact, an institution like the ABAwill only be able to give its rules "legal effect" if another institu-tion adopts these rules.

III. COMPARATIVE INSTITUTIONAL COMPETENCE

The next step in an institutional choice model is to ascertain whichactors are most competent at drafting and promulgating a set of legalprofessional responsibility guidelines. When speaking of "competence,"this inquiry is focused towards assessing whether a particular institu-tional actor has the structural apparatus and institutional resources topromulgate a set of rules. 74 Indeed, certain actors are better suited fordeveloping and promulgating legal ethics rules than other actors.75

Thus, here we are trying to ascertain which actor can most effectivelyuse its structural framework to produce a codification of attorney con-duct rules.

This question of institutional competence is very much related totraditional "separation of powers" philosophy. As a feature of our gov-ernment, various institutions have been structured in different ways(with overlapping powers) to achieve different goals. For example, Con-gress is deliberately structured as a large, representative body that isoften slow in enacting legislation. The constitutional framers purpose-fully designed Congress in this manner so that Congress could study,

74 See Deborah Maranville, Nonacquiescence: Outlaw Agencies, Imperial Courts, and the Perils

of Pluralism, 39 VAND. L. REv. 471, 523 (1986) (describing the "assumptions . . . implicit in

institutional competence analysis.").75 See, e.g., John Ferejohn, The Law of Politics: Judicializing Politics, Politicizing Law, 65 LAw

& CONTEMP. PROBS. 41, 45 (2002) ("There are good reasons why some kinds of legislation

should be debated and formulated in a legislature, while others should be made in courtrooms oradministrative agencies.")


consider, and deliberate legislative problems. 76 This structure of Con-gress will necessarily affect both the process and the substance of thelegislation. As one scholar has described, "the way a branch of govern-ment is designed to work profoundly affects the kinds of governing jobsit ought to do."77

Therefore, in asking the question of comparative institutional com-petence, one is really assessing how a particular institution is structured,and then considering whether this structure is conducive to drafting aset of professional responsibility rules. Since institutional structure im-pacts the ultimate result,78 it is vital that institutional choice scholars askthis question of comparative institutional competence. It is here that wecan begin the second prong of analysis.

A. Congress

A useful starting point to discuss Congress' competence is to ex-amine the "salient characteristics" of Congress. Judge Abner Mikva andProfessor Eric Lane have previously described Congress as being definedby its deliberativeness, representativeness, and accessibility. 79

In terms of deliberativeness, Mikva and Lane are referring to the"purposeful, institutional interaction with, and input from, individuals,groups, and entities with varied perspectives and objectives."8 Indeed,Congress is structured in such a manner that it must routinely deliberateand decide important issues of policy.8' This matter of routine, meth-odological deliberativeness, has been described repeatedly in the past,but is worth quickly summarizing:

To get a law enacted through the legislative process requires a host ofdistinct steps: a proposed bill moves through the committee process, isconsidered by both chambers, is subject to further debate and amend-

76 See infra notes 80-83 and accompanying text.

77 The Goldwater Institute and the Federalist Society: Federalism and Judicial Mandates, 28ARIZ. ST. L.J. 17, 171 (1996) (remarks of Professor Lillian R. BeVier).

78 See id.

79 See ABNER J. MiKvA & ERic LANE, AN INTRODUCTION TO STATUTORY INTERPRETA-

TION AND THE LEGISLATIVE PROCESS 69 (1997).

80 See Heminway, supra note 43, at 265 n.128 (describing Mikva and Lane's analytical

methodology).81 See Mikva & Lane, supra note 79, at 69.

74 CARDOZO PUB. LAW, POLICY & ETHICS j [

ment in conference committee and/or on the floor, and is finally sentto the President for signature or possible veto.82

Thus, any set of legal professional rules that Congress might pro-mulgate will benefit from a rigorous deliberative process. Indeed, "[o]urrespect for legislation is in part the tribute we should pay to the achieve-ment of concerted, cooperative, coordinated or collective action in thecircumstances of modern life. 83

Congress is also defined by its representative nature. As JeremyWaldron has noted, legislation is "the product of an assembly-themany, the multitude, the rabble (or their representatives)."84 Whilethere are many benefits to a representative institutional actor-for ex-ample, a representative legislature will likely enact legislation that reflects"the needs and desires of the populace served" 85-a representative actorwill also likely succumb to those groups that exert the most pressure. Inthis regard, consider Professor Sharona Hoffman's assessment of Con-gress' succumbing to the healthcare industry:

[B]ecause legislation is often a response to public pressure and politicalconcern, it does not necessarily assist all those in need. Groups withstrong lobbyists or prominent representatives might succeed inpromulgating legislation that benefits their special interest, whileequally deserving groups may fail because of much weaker lobbyingabilities and less prominence.86

Thus, while being "representative" might be a good virtue at times,it can also be a hindrance. In the context of legal profession rules, it isunclear how we should view Congress' representative nature. On onehand, if we trusted Congress with developing professional responsibilityrules, we would likely see Congress produce legislation that reflects thedesire of the population. On the other hand, there is a strong possibility

82 Richard J. Lazarus, The Supreme Court Roundup: Reflections on the Past, the Present, and the

Future of Environmental Law in the United States Supreme Court, A.L.I.-A.B.A. CONT. L. EDU.137, 158 (Feb. 8-10, 2006).

83 JEREMY WALDRON, THE DIGNITY OF LEGISLATION 156 (1999).

84 Id. at 33.

85 Heminway, supra note 43, at 269.

86 Sharona Hoffman, AIDS Caps, Contraceptive Coverage, and the Law: An Analysis of the

Federal Anti-discrimination Statutes' Applicability to Health Insurance, 23 CtARDozo L. REV.1315, 1359-60 (2002).

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that this legislation would unduly reflect the interests of stronglobbyists.

8 7

Similar to representativeness is the idea of accessibility. In this re-gard, Mikva and Lane note that Congress is particularly accessible be-cause it performs most of its work in public, in an open process, that thepublic may witness.8" Again, this accessibility has some benefits andcosts. While being accessible ensures that Congress will benefit frommore views, it also makes Congress more prone to outside pressure; thispoint is discussed in greater detail below.89 For now, though, it is suffi-cient to note that Congress' three salient characteristics- deliberative-ness, representativeness, and accessibility-provide Congress with somerelative strengths and weaknesses in the development of professional re-sponsibility rules.


Like Congress, administrative agencies are considered to be deliber-ative policy-making bodies that can devote time and attention to profes-sional responsibility issues.9° Indeed, the Administrative Procedure Act("APA") imposes this deliberativeness on the administrative agencies. 9 'The APA requires that, any time a federal agency develops a rule for thefirst time, the agency engages in a rigorous series of steps.92 These rulesrequire that the agency publish notice of their proposed rule, and allowindividuals "an opportunity to participate in the rule making throughsubmission of written data, views, or arguments with or without oppor-tunity for oral presentation. '"93 Additionally, after the agency has al-lowed ample time for comments, the agency must adopt a rule andprovide a concise, general document that responds to all relevant com-ments. 9 4 Some have suggested that the APA-imposed "notice and com-ment" procedures impose a high degree of deliberativeness on

87 See id.88 See MiWvA & LANE, supra note 79, at 77-78.

89 See infra Part V(A).

90 See, e.g., Heminway, supra note 43, at 275.

91 See Pub. L. No. 79-404, 60 Star. 237 (1946) (currently codified at 5 U.S.C. §§ 551-559,701-706 and other sections of 5 U.S.C. (2006)).

92 See 5 U.S.C. § 553 (2006). It is useful to note that non-legislative rules are exempt from

the "notice and comment" rulemaking requirements.

93 Id.9 4 Id.

76 CARD OZO PUB. LAW, POLICY & ETHICS J.

administrative agencies, as courts will review and overturn only arbitraryor capricious agency decisions. 95

Along a similar vein to this "imposed deliberativeness," administra-tive agencies generally are publicly accessible. Indeed, because of theaforementioned "notice and comment" procedures, public participationis "more likely to pay off because agencies are legally required to con-sider the relevant comments and arguments of affected parties ... 96

Therefore, if an agency, like the SEC, were assigned the task of develop-ing a set of regulations for lawyers practicing before it, one could assumethat the agency's final output would result in a deliberated and consid-ered product. This result is because any set of rules that the agencymight promulgate will be subject to comment from all interestedparties.97

While an administrative agency might benefit from "imposed de-liberativeness," it is clear that agencies are generally less responsive to thepublic's desires than is Congress.98 Indeed, the most significant critiqueof agency regulation over the past half century has been the lack ofresponsiveness and representativeness. As Mark Kende puts it, "mostagencies lack one aspect that is critical to Congress's reliability: represen-

95 See, e.g., Barry Friedman, The Politics ofJudicial Review, 84 TEx. L. Ruv. 257, 257-60(2005) (describing the positive theorists' summaries of judicial review of agency actions).

96 Lisa Schultz Bressman, Getting Beyond Cynicism: New Theories of the Regulatory State Dis-

ciplining Delegation After Whitman v. American Trucking Ass'ns, 87 CORNELL L. REv. 452, 482(2002) (internal citations omitted).

97 It is important to note that some have doubted the usefulness of the notice and commentprocedures, primarily on the grounds that only the most organized and powerful lobbies will beable to influence an agency's proposed rule. See, eg., Mark Seidenfeld, A Civic Republican Justifi-cationfor the Bureaucratic State, 105 HARV. L. REv. 1511, 1565-70 (1992) (noting that "indus-try representatives co-opt government regulatory power in order to satisfy their private desires.Regulated entities are well organized and generally well funded, and they often have stronginterests at stake .... These entities have much to gain by ensuring that they have control overgovernment decision-makers and that the decision-makers whom they do control remain inoffice."); see also Mark C. Niles, On the Hijacking ofAgencies (and Airplanes): The Federal Avia-tion Administration, 'Agency Capture, "and Airline Security, 10 AM. U. J. GENDER SOC. POL'Y &

L. 381, 388 (2002) (concluding that "[t]he focus of this pressure will invariably be an attempt topromote the 'private' interest of the regulated group at the expense of some broader interest ofthe public as a whole, which would otherwise have been the primary concern of the regulatory

agency.").

98 For an argument that agencies are actually more representative than Congress, considerBressman, supra note 96, at 482. Bressman argues that agencies are more representative than

Congress "because they are more accessible.... Agencies also are more responsive because theyare better able than Congress to hammer out regulatory details as information and policy stakesemerge. Furthermore, agencies are more responsive because they are more resistant than Con-gress to interest group influence ...." Id.

[Vol. 6:57


tativeness." 99 While the process for selecting agency commissioners var-ies from agency to agency, the President generally appoints officials onthe basis of political connections, and not on the basis of representative-ness or expertise.' 0 Moreover, agency commissioners are often ap-pointed for four- to eight-year terms, and, once appointed, removal isimmensely difficult.' This process to remove an officer is purposefullydifficult; Congress "sought to insulate some regulatory decision makingfrom the control of elected government."'10 2

It is difficult to draw conclusive comments about administrativeagencies' (relative) lack of representativeness. As described above, repre-sentativeness is not always a "net good." 10 3 It likely makes an actorimmensely susceptible to interest group pressure and lobbying.' 0 4 Atthe same time, though, a "representative" actor will likely be more re-sponsive to the needs and interests of the public. 05 Thus, an assessmentof administrative agencies' institutional competence ought to considerthe ways in which agencies are more deliberative and accessible, butarguably less representative of (and, inferentially, less accountable to) thepublic's needs.

C. The Courts

At the onset, it is useful to note that the way that courts promul-gate professional responsibility rules is different from how courts nor-mally interpret these rules. When courts interpret rules (or cases), theytend to have "limited ability to control the amount and type of litigation[they] hear[ ] and will hear."'10 6 However, when promulgating rules ofpractice and procedure, courts have a distinct set of procedures. These

99 Mark S. Kende, Comment, Principles of Competence: The Ability of Public Institutions toAdopt Remedial Affirmative Action Plans, 53 U. CHI. L. REv. 581, 619 (1986).

100 See, e.g., Thomas McGrew, Courts Must Look Behind Myth of Agency Expertise, LEGAL

TIMES, Apr. 6, 1981, 12:1 (noting that "[tihe Law needs to accept, however belatedly, thatadministrators are not experts often enough to justify any kind of presumption that they are.These days, regulators-like judges-are picked because they are well connected. ... ).

101 See, e.g., WILLIAM N. ESKRIDGE, JR., ET AL., LEGISLATION AND STATUTORY INTERPRETA-

TION 204 (2000) (describing the difficulty of removing agency officials once appointed).102 Neal Devins, Unitariness and Independence: Solicitor General Control over Independent

Agency Litigation, 82 CAL. L. REv. 255, 321 (1994).103 See supra notes 86-87 and accompanying text.

104 Id.105 See supra note 85 and accompanying text.

106 Heminway, supra note 43, at 293.

78 CARDOZO PUB. LAW, POLICY & ETHICS J V

procedures vary, depending on whether the rules are "local" or"uniform."

When federal courts promulgate a set of "local" rules, they mustabide by "notice and comment"'0 7 procedures. These "notice and com-ment" procedures are similar to the ones that agencies must follow whenthey enact rules,' 08 and strengths and weaknesses of this "imposed delib-erativeness" have been previously discussed.'0 9

However, the heart of the structural competence question shouldbe directed towards "uniform" rules adopted by the U.S. SupremeCourt. Daniel Coquillette and Judith McMorrow have described thesteps involved in the formulation of "uniform" federal rules." 0 Thesesteps are briefly summarized as follows:

1. Advisory committees are empowered to propose sets of uniformrules under section 2073 of the Rules Enabling Act. Advisorycommittees must meet twice a year at meetings which open andaccessible to the public. These committees are composed of mem-bers of the bench and the professional bar, and trial and appellatejudges.

2. A Committee on Rules of Practice and Procedure (the "StandingCommittee") must approve the uniform rules for the rules to goany further. The Standing Committee is required by Congress andbasically serves as a coordinator for the various advisory commit-tees. Importantly, the Standing Committee is authorized to sug-gest changes "as may be necessary to maintain consistency andotherwise promote the interest of justice.""'

3. Once approved, the Judicial Conference of the United States' 12

must approve the uniform rules. The Attorney General may meetwith the Judicial Conference and provide his commentary.13

107 See 28 U.S.C. § 2071 (2006).108 See supra notes 91-95 and accompanying text.

109 See id.110 See McMorrow & Coquillette, supra note 55, at § 801.04.

IMl 28 U.S.C. § 2073(b) (2006).112 This committee is authorized pursuant to 28 U.S.C. § 331 (2006), which provides that

the Chief Justice shall summon "the chief justice of each judicial circuit, the chief judge of the

Court of International Trade, and a district judge from each judicial circuit to a conference.Id.

113 The Attorney General's comments are limited to "matters relating to the business of the

several courts of the United States." 28 U.S.C. § 331 (2006). It is rare for the Attorney Generalto oppose a rule, but it has happened. The most frequent example of a rule objection has come

in the context of proposed amendments to the Federal Rules of Evidence and the Federal Rules

of Criminal Procedure. See McMorrow & Coquillette, supra note 55, at § 801.04[6].

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4. Lastly, the Supreme Court must approve the uniform rules beforethe rules can be submitted to Congress. As part of a recent trend,"the Court has accorded serious, independent review to proposed

"1114amendments....

While this description greatly over-simplifies the process of enact-ing a set of "uniform" attorney conduct rules, there are several key con-siderations of which to make note. First, the process for promulgating aset of rules by the judiciary has multiple levels of comment and reviewas the rules make their way from the advisory committee to the SupremeCourt. In particular, the Supreme Court is increasingly exercising itsreview power over proposed rules.115 Second, it is worth mentioningthat the current process of judicial rulemaking ensures input from allbranches of government (rather than merely from the judiciary). Thejudiciary, of course, takes the lead, with consultation from executiveofficials (the attorney general) and with oversight from Congress.Third, while there is consultation from other branches, there is verylittle accountability or representativeness in this judiciary rule develop-ment process. In this regard, federal Article III judges are given lifetenure, and, thus, accountability and responsiveness to the citizenry atlarge is indirect."' Indeed, impeachment is the only remedy against Ar-ticle III judges, and such proceedings are notoriously time-consumingand generally fruitless.'1 17

However, the most important feature of the judicial "uniform"rulemaking process is the idea that the entire rulemaking process in-volves a lengthy and time-consuming system. As described by ProfessorsMcMorrow and Coquillette:

When all steps of the Rules Enabling Act are considered, the fastestadoption of a new rule would take about two-and-a-half years, morethan an entire term of Congress. While this slow pace can cause itsown problems, it makes it impossible for any special interest to 'rail-

114 Peter G. McCabe, Renewal of the Federal Rulemaking Process, 44 AM. U. L. Ruv. 1655,

1674 (1995).115 In this regard, consider the comments of Professor McCabe who has argued that "al-

though the length of the rulemaking process would be shortened by eliminating the role of theSupreme Court, the Court's enormous prestige clearly contributes to the legitimacy and credibil-ity of the process." Id. at 1675.

116 U.S. CONST. art. 1II, § 1; See also LYONS & SCHEB, supra note 57, at 479 (discussing the

lack of representativeness of the federal judiciary).117 See LYONS & SCHEB, supra note 57, at 481.


road' through a particular provision. The temptation, rather, is to tryto 'railroad' a rule change through Congress instead.' 18

Therefore, when evaluating the comparative institutional compe-tence of the federal courts, it is important to note that the courts are adeliberatively slow-moving body. Naturally, there are both benefits andcosts to this lengthy process. For instance, this time delay creates a cer-tain degree of insulation from outside political pressure,119 and the lackof time pressure also likely ensures further deliberation. Alternativelyseen, though, the judiciary seems ill-suited to develop and promulgaterules to remedy an immediate problem. Naturally, these comparativestrengths and weaknesses ought to be considered when choosing theappropriate institutional actor to spearhead the development of futurefederal attorney conduct rules.

D. Self-Regulatory Institutions

While each self-regulatory institution is free to fashion its ownmethods and procedures for generating rules (and these institutions aremore flexible at changing these procedures than other institutional ac-tors), one can still make several comments about the comparative com-petence of self-regulatory institutions. When commenting on thiscompetence, though, it is beneficial to review how the ABA (the leadingself-regulatory institution) developed its last major set of legal rules (theModel Rules) in 1983.

The ABA began work on the 1983 Model Rules in 1977. In 1977,the ABA House of Delegates approved the creation of a commissiontasked with reviewing the existing rules and suggesting modifications forfuture rules. This Commission took five years to complete their work,primarily because the Commission revisited and evaluated every aspectof the existing attorney conduct rules. 2 ' In doing this, the Commissionheld numerous hearings, solicited a multitude of comments from vari-ous organizations, and invited speakers from ABA sections, bar associa-tions, law schools, consumer groups, and the judiciary.'21

118 See McMorrow & Coquillette, supra note 55, at § 801.04[7].

119 See id; see also infra Part V(C).

120 See THE LEGISLATIVE HISTORY OF THE MODEL RULES OF PROFESSIONAL CONDUCT:

THEIR DEVELOPMENT IN THE ABA HOUSE OF DELEGATES, v (1997).121 See id.

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Once the Commission drafted a set of possible modifications, theCommission referred their work to the ABA House of Delegates in Jan-uary, 1982. The Delegates then discussed the merits of the Commis-sion's work, and ultimately endorsed the promulgation of a new set ofModel Rules of Professional Conduct.' 22 In so doing, the House ofDelegates made several basic modifications (including changing the ba-sic framework of the rule structure to a system of black letter rules,accompanied by explanatory comments). 123 The Delegates adjournedtheir meeting in January, while authorizing individual committees tofurther study and comment on specific portions of the Commission'sproposed modifications.

The next step in the rulemaking process occurred seven monthslater, when the ABA House of Delegates-as an entire group-estab-lished a sequence for discussing proposed rule changes. The House ofDelegates decided to discuss the more controversial rules first, ratherthan proceeding in numerical order. The House of Delegates then be-gan debating the relative merits of the existing rules and the nature ofany modifications. 124

Six months later, the ABA House of Delegates again met and dis-cussed proposed rule changes. In conjunction with this ABA House ofDelegates meeting, the "House Committee on Drafting worked with theCommission on Evaluation of Professional Standards to revise the pro-posed Comments to reflect House action on the black letterRules .... "125 These proposed rule drafts were then "circulated tomembers of the ABA House of Delegates, chairpersons of ABA sectionsand committees, and all other interested parties." 126

Several months later, the House Committees met again. Thistime, the Committees discussed the comments received and incorpo-rated some of these comments into the proposed rules. Ultimately, theentire ABA House of Delegates signed off on the rules in August 1983,one and a half years after the initial rule revision process began. 127

122 See id. at 1.

123 See id. This proposed method replaced the tripartite format of Canons, Ethical Considera-

tions and Disciplinary Rules.124 See id

125 Id. at 1-2.

126 Id.127 See id.


For comparison's sake, the ABA's recent Ethics 2000 project fol-lowed a similar process. 128 The ABA House of Delegates created a thir-teen-member commission to analyze and suggest possible changes to therules governing attorney conduct. Ultimately, the Commission re-quested and analyzed various viewpoints that were received from legalprofessionals. In particular, the Commission had a 250 member Advi-sory council, scheduled fifty days of meetings, held ten public hearings,and reviewed comments on the public discussion drafts. 129

In analyzing the previous work of the ABA (as a model for assess-ing a self-regulatory institution's comparative competence), one cansurmise a few conclusions. First, like all of the other institutional actors,self-regulatory institutions have multiple methods for participation frominterested parties. This purposeful participation might be an effort bythe ABA to ensure that the public views the ultimate work product as"legitimate" and "acceptable."1 3

' However, almost always the peoplewho comment are interested lawyers (as opposed to laypeople or cli-ents).13 ' Second, the process is deliberative in that there are multiplelevels of review, mainly from the ABA House of Delegates. Third, theprocess-like the judicial method for promulgating rules-is notori-ously slow. It took the ABA more than six years to finally promulgate aset of Model Rules in 1983. Fourth, as compared to other possible ac-tors, it seems that self-regulatory institutions have uniquely limited rep-resentativeness and diversity of opinions. Consequently, looking at thecomparative institutional competence of a group like the ABA, onemight surmise that the "fox [is] guarding the henhouse." 132 Indeed, un-like Congress (where many members are non-lawyers), agencies (wheremembership is also made up of non-lawyers), and the courts (whereCongress and the Executive have some level of oversight and review), themembership of self-regulatory institutions is, by definition, almost ex-clusively lawyers. 133

128 See Charlotte Stretch, Overview of Ethics 2000 Commission and Report, http://www.

abanet.org/cpr/e2k/e2k-ov-mar02.doc (last visited April 19, 2007).129 See id130 See id. (noting that the process was "open" and "enhance[d] public trust and confidence

in the legal profession.").131 See, e.g., Scott Slonim, 'Lawyer as Cop'Rule May Face Trimming, 66 A.B.A. J. 438 (1980)

(noting that all the witnesses who testified before an ABA public hearing on March 3, 1980 werelawyers).

132 See Schneyer, Legal Process Scholarship, supra note 14, at 41.133 For an opposite view on this point, consider Ted Schneyer, Professionalism as Bar Politics:

The Making of the Model Rules of Professional Conduct, 14 LAw & Soc. INQUIRY 677, 678, 695-

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20071 INSTITUTIONAL CHOICE ON RULE OUTCOMES 83

Thus, with respect to the promulgation of attorney conduct rules,one can briefly summarize the comparative institutional competence ofthe potential actors:

COMPARATIVE INSTITUTIONAL COMPETENCE SUMMARY

Congress Congress is defined by its "deliberativeness, representativeness, andaccessibility." That is, Congress has rigorous procedural require-ments that it must follow in enacting legislation, and there arevarious levels of oversight (primarily Congressional committeesand Presidential veto). Congress is held accountable through elec-tions every two years, and is thus representative. Lastly, access toCongress is notorious-while it ensures Congressional membershear a diversity of opinions, it also opens the way for undue biasby special interests/lobbyists.

ADMINISTRATIVE AGENCIES As specified by the Administrative Procedure Act, administrativeagencies may only pass rules when they engage in "notice andcomment" rulemaking. An agency must provide notice of anyproposed rule, allow enough time for interested parties to com-ment, and then respond to all comments. Any agency rule is sub-ject to judicial review. Additionally, agency commissioners areless "representative" of the public. They are appointed by thePresident for four to eight years and removal is difficult. Moreo-ver, agency commissioners are often appointed not based on theirexpertise or the diversity of their opinions, but rather because oftheir political connections.

THE COURTS When the federal courts wish to make "local" rules, they mustfollow the familiar notice and comment procedures (similar towhat administrative agencies must follow). When the SupremeCourt wishes to make a "uniform" national rule, the procedure ismore rigorous. It involves an Advisory Committee, a StandingCommittee, the Judicial Conference of the US, and the SupremeCourt. Any rules that the Supreme Court passes are subject toCongressional review.

SELF-REGULATORY Self-regulatory institutions do not have any rigidly defined proce-INSTITUTIONS dures that they must follow when promulgating rules. However,

by convention, the ABA has followed a robust, deliberative modelof reviewing current attorney conduct rules and suggestingimprovements. Because the process involves so much deliberation,the ABA moves very slowly; for instance, it took six years for thepromulgation of the 1983 Model Rules. The biggest criticism ofself-regulatory institutions is the fear that "the fox will guard thehenhouse," since these institutions are dominated almost exclu-sively by lawyers.

IV. COMPARATIVE INSTITUTIONAL EXPERTISE

The next factor to consider in assessing the strengths and weak-nesses of a particular actor is to assess the actor's relative expertise. It is

97 (1989) [hereinafter Schneyer, Professionalism] (arguing that the ABA's production of theModel Rules is "the most sustained and democratic debate about professional ethics in thehistory of the American bar," in large part because of the ABA's sensitivity to press coverage andthe ABA's desire to receive public support).


axiomatic to note that the "best"' 34 set of professional responsibilityrules will be promulgated when the drafters of the rule have some exper-tise in drafting these rules and knowing which rules will most likelyproduce the "best" outcome.1 35

To underscore the importance of institutional expertise, considerthe Supreme Court's consideration of expertise in the administrativeagency context. The Court has repeatedly noted that because agenciesare experts at regulatory problems, decisions made by these agenciesshould be entitled to a highly deferential standard. 136 Indeed, despitesome amount of criticism, academics and thought-leaders consider "in-stitutional expertise" an important factor, if not, the most importantfactor, in considering the appropriate actor to spearhead a governmentaction. 137

The degree of expertise (or substantive competence)138 is an impor-tant consideration when choosing the appropriate institutional actor toinitiate the development of professional responsibility rules, whether thisexpertise is in the actual drafting of the rules, the type of rules that areneeded, or in deciding whether rules are needed at all. 139 With thisbackdrop, we can assess the actors' comparative institutional expertise.

134 In this context, "best" implies a codification of rules or guidelines that most closely re-

flects the stated goals of professional responsibility rules. See supra notes 40-42 and accompany-

ing text.135 See, e.g., JAMES M. LANDIS, THE ADMINISTRATIVE PROCESS 23-24 (1938) ("The need for

expertness became dominant [with more regulation]; for the art of regulating an industry re-quires knowledge of the details of its operation, ability to shift requirements as the condition ofthe industry may dictate, the pursuit of energetic measures upon the appearance of an emer-gency, and the power through enforcement to realize conclusions as to policy.").136 See infra Part II(B); see also Chevron USA, Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837, 865 (1984) (noting that "[p]erhaps [Congress] consciously desired the Ad-ministrator to [make judgments], thinking that those with great expertise and charged withresponsibility for administering the provision would be in a better position to do so [than the

courts].").137 See, e.g., Heminway, supra note 43, at 264; see also WILLIAM DOuGLAS, DEMOCRACY

AND FINANCE 246 (1940) (noting that administrative expertise is the only way to handle "theovercomplicated social and economic problems of today").

138 See Kathleen Bawn, Political Control v. Expertise: Congressional Choices About Administra-

tive Procedures, 89 AM. POL. ScI. REV. 62, 66 (1995) (noting that agency expertise can beconsidered a "continuous variable" rather than an "all-or-nothing variable").

139 See generally, e.g., Coquillette and McMorrow, supra note 19 (noting that, in some con-

texts, a set of codified rules might not be appropriate).

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A. Congress

From an expertise standpoint, it is debatable how much institu-tional "credit" should be afforded to Congress. As an initial matter,Congress most certainly has some categorical knowledge of lawmakingand of what makes a well-defined law. 140 At the same time, it is nor-mally assumed that Congress has a general knowledge of most policyissues affecting the nation (including the issues impacting the legal pro-fession).' 4 ' This presumption stems from the fact that, because of two-year electoral cycles, congressional members are perceived to be familiarwith and aligned with the interests of their constituents.

While Congress understands the particulars of legislating, it issomewhat less clear whether Congress is always particularly well versedin the substantive issues. 142 Congress is tasked with handling a multitudeof issues, and may often have little time to devote to the specifics of aparticular policy issue.' 43 In particular, it seems clear that Congress"lacks the necessary expertise to craft narrow specifications of normativeconduct."' 44 Specifically within the context of legal professional respon-sibility rules, it seems unlikely that the 535 members of the UnitedStates House of Representatives and Senate would be able to devoteenough time to understanding the complex issues of lawyer regulationin an era of overlapping rules, immense client conflicts, and other vexingproblems.

Against this backdrop, it appears that if Congress was tasked withdeveloping a set of legal professional responsibility guidelines, the citi-zenry might be reasonably confident that Congress would have someknowledge about what these guidelines or rules should look like, andwhat potential legislative pit-falls should, and could, be avoided. Yet,

140 See, e.g., David Schoenbrod, Separation of Powers and the Powers that Be: The Constitu-

tional Purposes of the Delegation Doctrine, 36 Am. U. L. REV. 355, 388 (1987) (stating, "Con-gress, it might be argued, is the expert on ways of legislating so that the Court should defer.").

141 See, e.g., The Federalist No. 53, (James Madison) ("Knowledge ... will be brought by the

representatives of every part of the empire.").142 See, e.g., Carl Tobias, The D.C Circuit as a National Court, 48 U. MiAmi L. REv. 159,

175 (1993) (noting that, in many areas, claims are made that Congress "lacks ... the substantiveexpertise").

143 See, e.g., Sabrina Charles, Reining in Agency Action: The Rejected Proposal Rule and Section1011 of the 2003 Medicare Act, 39 J. HEALTH L. 403, 408 (2006) (arguing for an increased rolefor administrative agencies given that Congress often "lacks the time or expertise to review ...challenging policy questions").

144 Harvey L. Pitt & Karen L. Shapiro, Securities Regulation By Enforcement: A Look AheadAtthe Next Decade, 7 YALE J. ON REG. 149, 164-65 (1990) (emphasis in original).


there should be some skepticism about whether Congress truly knowsthe particular issues facing the legal profession.


As a general matter, agencies are presumed to be incubators of in-stitutional expertise.' 45 Commentators, politicians, and the courts alikehave heaped praise on a system that allows bureaucrats to assess vexingproblems and address these problems with considered and deliberatethoughtfulness. Most commentators argue that the "breadth anddepth" of agency staff "reflects the knowledge and experience"'14 6 of theagency.

The idea that agencies have some particular "institutional exper-tise" has a long lineage in American legal thought, and both Congressand the courts have accepted this assumption. Indeed, the SupremeCourt has embraced an expansive doctrine of deferring to administrativeagencies' judgments and decisions, precisely on the basis of administra-tive expertise. In the most well-known defense of agency expertise (andjudicial deference to agencies' decisions), the Court noted:

Perhaps [Congress] consciously desired the Administrator to [makejudgments], thinking that those with great expertise and charged withresponsibility for administering the provision would be in a better po-sition to do so [than the courts]. . . . Judges are not experts in thefield, and are not part of either political branch of the Govern-ment .... [A]n agency to which Congress has delegated policy-mak-ing responsibilities may, within the limits of that delegation, properlyrely upon the incumbent administration's views of wise policy to in-form its judgments. 14 7

However, despite the long-standing assumption of agency exper-tise, some have recently begun to question whether agencies really areexperts in this area (especially with regards to tangential regulation suchas legal professional rules for lawyers who occasionally appear before the

145 See, e.g., Landis, supra note 135, at 23 (arguing that expertise "springs only from that

continuity of interest, that ability and desire to devote fifty-two weeks a year, year after year, to aparticular problem"). He reasoned that administrative agencies were particularly well suited togenerating expertise in regulation, as they routinely saw the same regulatory problems repeatedlyon a day-to-day basis. Id.

146 See, e.g., Heminway, supra note 43, at 286.147 Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 865

(1984).

[Vol. 6:57


agency). Indeed, "[c]riticism of the purported expertise of administra-tive agencies-of their failure to live up to the New Deal's idealizedconception of their capacities has increased in frequency."' 4 8 ProfessorFreedman has pinpointed several arguments against agency expertise. Inparticular, he suggests that the high turnover of agency staff results inonly brief involvement at an agency, thereby reducing constant expo-sure.149 Additionally, Freedman argues that even those staff membersthat do stay at an agency for an appreciable time "may have acquired nomore than a routinized experience, rather than expertness."' 50 Lastly, heargues that appointed agency heads do "not possess the qualifications tobe regarded as experts before they began their service." 15 1

Given this skepticism, society may want to temper its respect foragency expertise, particularly in the realm of promulgating legal profes-sion rules for attorneys, who only marginally appear before a particularadministrative agency. Nonetheless, though, one might be reasonablyconfident that an agency has more expertise in developing legal profes-sional responsibility rules than Congress. 15 2

C. The Courts

There has been a long-standing assumption that the courts haveparticular expertise in knowing what the proper scope of attorney con-duct rules should entail. 153 Indeed, as one scholar has noted, "judges areuniquely qualified experts who can offer valuable insights into the ef-fects" of attorney conduct reforms. 154 Continuing, Professor Geyh hasargued that,

[i]t bears emphasizing that such [judicial] expertise includes, but is notlimited to, matters of court practice and procedure, judicial pay andprerequisites, and judicial administration. As lawyers who adjudicate,judges acquire special knowledge on general issues of law that lawyerswho advise, litigate, or legislate may lack.' 55

148 James 0. Freedman, Expertise and the Administrative Process, 28 ADMIN. L. REv. 363, 370

(1976).149 Id at 371.150 Id.151 Id.

152 See supra notes 142-144 and accompanying text.

153 See McMorrow & Coquillette, supra note 55, at § 801.04[7].154 Charles Gardner Geyh, Paradise Lost, Paradigm Found: Redefining the Judiciary's Imperiled

Role in Congress, 71 N.Y.U. L. REv. 1165, 1219 (1996).155 Id.


In this regard, it seems that the judiciary is particularly well

equipped with the requisite knowledge to comment on what a proposed

attorney conduct rule should look like. Indeed, it seems that the judici-

ary might have more expertise than other actors given the fact that

judges, as generalists, must constantly relate discrete legal subjects to abroader philosophical view of law. 156

However, some scholars have argued that judges have no particularinstitutional knowledge to draft legal ethics rules. These opponents ar-gue that, "[j]udges can easily be unfavorably contrasted with the techni-cally more expert bureaucrats of administrative agencies who, like juriesand judges, serve as fact-finders and implementers of rules and stan-dards." 57 Additionally, because judges are insulated from the "realworld" of law firms and private practitioners, they are necessarily sepa-rated "from a great deal of information about the desires and needs ofthe public.... [Judges] depend on others to convince them by evidenceand reason." 158

Ultimately, when considering comparative institutional expertise,one must be cognizant of the strengths and weaknesses of the judiciary'sinherent knowledge. Absent an understanding of the judiciary's limita-tions, one cannot accurately determine the correct institutional actor tospearhead the development of attorney conduct regulations.


As a general matter, we should expect that self-regulatory institu-tions would have the most institutional knowledge and expertise to draftfine-tuned legal professional responsibility rules. Because these institu-tions are made up of lawyers who actually do the "lawyering," theseinstitutional members can provide first-hand experience and advice. 159

156 See Bernard W. Bell, Using Statutory Interpretation to Improve the Legislative Process: Can it

be Done in the Post-Chevron Era?, 13 J. L. & POLITICS 105, 144 (1997) ("On issues that recur in

a number of subject areas or that involve the relationship of one area to a broader range of law,

judges, as generalists, may occupy a uniquely advantageous position. Examples of such issues are

those involving the philosophy of law and government and procedural fairness.").

157 KOMESAR, IMPERFECT ALTERNATIVES, supra note 13, at 139.

158 Id. at 141.

159 See, e.g., Andrew L. Kaufman, Judicial Correctness Meets Constitutional Correctness: Section

2c of the Code of Judicial Conduct, 32 HOFSTRA L. REv. 1293, 1297 (2004) (noting that the

ABA claims, and observers accept, a certain degree of expertise in the drafting of legal profes-

sional codes).

[Vol. 6:57


Indeed, in several related contexts, academic and judicial officials ac-knowledge and embrace deference to self-regulatory institutions. 160

There are two reasons, though, to be cautious before simply pro-claiming self-regulatory institutions as the incubators of expertise. First,while there might be good reasons for thinking that self-regulatory insti-tutions have the most expertise in drafting and promulgating a set oflegal ethics rules, there are also many reasons to suspect that this exper-tise wanes as the specificity of the field increases. As Prof. Schneyerobserves, "ABA ethics codes addressed to the entire bar are weak at spec-ifying rules for specialized fields of practice. When the need for specific-ity becomes acute, rulemaking authority may shift from the ABA andthe state supreme courts to an institution better suited to develop spe-cific rules or 'protocols."" 6 ' Thus, in cases of particularized guidelines,we might be skeptical that a large institution like the ABA has the spe-cialized institutional expertise to draft well-tuned professional responsi-bility rules. 162

Second, and more critically, it is unclear whether the ABA or anyother self-regulatory institution actually has expertise about client's in-teractions with lawyers, client's perceived complaints, or any issue in-volving a non-lawyer's interaction with the legal service industry.163

While lawyers might have some knowledge about how they personallypractice law, it is somewhat more tenuous to suggest that lawyers have agreat understanding of how legal institutions are generally viewed. In

this regard, just as we assume that experts testifying at trial have a lim-ited "expertise" base, 164 we should similarly assume that lawyers have alimited "expertise" base about their profession.

160 See, e.g., Caroline J. Dillon, Do You Get What You Pay For? A Look at the High Fees and

Low Protections of Mutual Funds, 2006 COLUM. Bus. L. REV. 281, 306 (2006) (noting that

"[s]elf-regulatory organizations ('SROs'), like the New York Stock Exchange ('NYSE') and the

National Association of Securities Dealers ('NASD'), serve as important regulators in the finan-

cial industry because they allow industry participants [to] bring to bear expertise and intimate

knowledge of the complexities of the securities industry.") (internal citations omitted).161 Schneyer, Legal Process Scholarship, supra note 14, at 57.

162 For more on this point, see Fred C. Zacharias, Specificity in Professional Responsibility

Codes: Theory, Practice, and the Paradigm of Prosecutorial Ethics, 69 NOTRE DAME L. REV. 223,

224-25 (1993).163 See generally, Louis A. Craco, "Carpe Diem "' An Opportunity to Reclaim Lawyers' Indepen-

dence, 27 PACE L. REV. 1, 9 (2006).164 Consider this famous passage: "The fact that an expert witness has impressive scientific

qualifications does not by that fact alone make his opinion on matters of human nature and

behaviour within the limits of normality any more helpful than that of the jurors themselves; but

there is a danger that they may think it does." R. v. Turner, [1975] Q.B. 834, 841; Similarly, in

90 CARDOZO PUB. LAW, POLICY 6- ETHICS J [Vol. 6:57

The chart below briefly summarizes the comparative institutionalexpertise attributes of various institutional actors:

COMPARATIVE INSTITUTIONAL ExPERTsr SUMMARY

Congress While Congress has great institutional knowledge regarding theactual drafting of legislation, Congress lacks the expertise to craft"narrow specifications of normative conduct. " Congress lacks thisknowledge as it is tasked with addressing a broad array of legisla-tive matters and often will be unable to devote substantial time tolearning the particulars of legislation.

ADMINISTRATIVE AGENCIES While administrative agencies are presumed to be "incubators ofknowledge," there are significant reasons to doubt that administra-tive agencies have great knowledge about policing attorney con-duct. Since most agencies have not yet developed attorneyconduct regulations, the learning curve will likely be steep andthere will likely be little existing institutional expertise.

THE COURTS Generally, one should expect that federal judges would bringsome inherent expertise to the drafting of attorney conduct rules.Since judges must constantly relate discrete legal subjects to abroader philosophical view of law, judges will likely understandthe ethical goals served by attorney conduct rules. However,judges are mostly insulated from the inner-workings of the legalservice industry and might lack some day-to-day knowledge.

SELF-PEGULATORY No actor better understands the struggles facing attorneys thanINSTITUTIONS self-regulatory institutions. At the same time, though, the level of

the ABA's expertise will likely wane as the specificity of the fieldincreases. Additionally, while the ABA might understand thechallenges that lawyers face, one should not presume that theABA has expertise with respect to the views of non-lawyers.

V. COMPARATIVE INSTITUTIONAL IMPARTIALITY

Lastly, it is important that one considers an actor's institutionalimpartiality when contemplating institutional choice questions. An in-stitution that is particularly susceptible to influence and bias might beless preferable than an institution that has structural checks to limit un-due influence. While it seems intuitive that bias is generally frownedupon, it is important to note that undue bias or partiality is dangerousbecause it undermines the rule of law and weakens confidence in thefinal promulgation of work. 6 5 Therefore, one should ideally seek aninstitutional actor that is relatively immune from undue partiality.

the context of attorney ethics rules, there might be undue consideration given to attorneys andtherefore an improper assumption that attorneys have some great expertise in the proper notionof "professional responsibility."

165 See Brendan J. Doherty, Stifled Speech and Judicial Campaigns: An Analysis of a Conflicted

Legal Culture in Republican Party of Minnesota v. White, 32 N. Ky. L. REV. 305, 323 (address-ing arguments as to why judges should not be involved in politics, and noting that "even the


To determine which actor is the most immune from bias, one mustlook at both internal bias and external pressure. In the words of Profes-sor Heminway, "a rule proponent must evaluate the influences to whichthe institution is subject and the biases exhibited by the institution andmust make a judgment about the effects on the proposed rule of eachsource of influence and bias."16 6 Therefore, in evaluating the possibleinstitutional actors, it will be useful to consider both what type of per-son works for the actor, 167 and also what type of person interacts withthe actor. 16

8

A. Congress

The ability of interest groups and lobbyists to influence congres-sional action is well documented. 169 In this regard, Congress (relative toany other institutional actor) is probably the most susceptible to fallingvictim to external pressure. Through monetary donations, access to cer-tain constituency groups, and other mechanisms, certain groups havebeen able exploit their leverage for favorable legislation in routinely co-opting Congress.

In the context of attorney conduct rules, one need not look furtherthan the "trial bar," a powerful lobbying group that has routinely beenable to influence Congress and manipulate proposed legislation.1 70 Forexample, the trial bar, along with various other lobbying groups, hasbeen successful at thwarting bills that would limit the influence of trial

appearance of partiality is enough to undermine public confidence in the judicial system, which

is critical to its legitimacy").166 See Heminway, supra note 43, at 307.

167 See id. ("[ilt is important to recognize at the outset that the individuals comprising the

institution may come to that institution with their own preconceived viewpoints based on self-

interest, personal history, and relationships, as well as individualized cognitive biases and partial-

ity based on political party membership or ideology.").

168 See id. ("Institutions also are subject to external influences that impact their respective

abilities to engage in impartial evaluations and judgments.").169 See Warren R. Leiden, The Role of Interest Groups in Policy Formulation, 70 WASH. L. REV.

715, 719 (1995) ("As a body, Congress approaches decision-making as most individuals do.

Sometimes its decisions are based on financial interests, sometimes for reasons of justice or its

hopes, fears, or passions. In the immigration field... Congress members are most influenced

by constituent interests and media attention.").170 See, e.g., Opinion, Trap-Door Politics Merging Issues Empower Trial Bar, OKLAHOMAN,

Mar. 20, 2005, at 24A (concluding, "[i]t's also time to end the disproportionate influence of the

trial bar").


lawyers. 171 One could imagine that if Congress were to propose a ro-bust set of federal ethics rules, the trial bar-as well as a host of otherlobbying groups-would attempt to influence congressional members tooppose those rules.

Apart from overt lobbying, Congress is also heavily influenced byother outside forces. For example, Professor Heminway has previouslynoted that media can have a large role in shaping Congress' agenda:

The media also has an influence on Congress. By assembling and pub-lishing information from public opinion polls and printing or airingeditorials, op-editorials and other reader opinions, the media both in-forms and shapes congressional decisionmaking. Moreover, the publicmedia inform and instigate the public at large, who, as constituents ormembers of interest groups, may then take action to influenceCongress. 172

Thus, there are a multitude of external pressures that might affectCongress' ability to develop a "fair" and "unbiased" set of attorney con-duct rules. Whether Congress also succumbs to an internal bias issomewhat less clear. Given the 535 members of Congress and theirvaried backgrounds, 173 it seems unlikely that any one dominant subcon-scious view is manipulating the work product of Congress. Nonetheless,looking at the forms of external pressure on Congress, one might viewthe relative institutional impartiality of Congress somewhat skeptically.


Administrative agencies are also prone to outside influence. In thisregard, agencies are particularly vulnerable to pressure from Congress,and will likely not pursue policy goals without tacit support from Con-gress. 174 Congress' influence flows from several powers. First, Congress

171 See, e.g., Donna Harris, Trouble Persists With Lease Liability, AUTOMOTIVE NEWS, July 12,

2004, at 26 (noting that the trial bar has had a strong influence at blocking legislation thatwould repeal vicarious liability for car manufacturers).

172 Heminway, supra note 43, at 312.173 See Membership of the 109th Congress: A Profile, available at www.er.doe.gov/bes/109th

-Congress 1st SessionCRS_20DEC04.pdf (last visited April 19, 2007); see also "A Few(er)Good Men" http://fireflip.blogspot.com/2006/05/fewer-good-men.html (last visited April 19,2007).

174 If agencies will not pursue policies without some initial Congressional support, then it is

logical to assume that a group which can manipulate Congress can, by extension, manipulateadministrative agencies.

[Vol. 6:57


is responsible for approving agency appointments. 75 This can be a con-siderable leveraging tool for Congress. Professor Strauss has previouslynoted that Congress can ensure agencies' "political accountability ... byappointment mechanisms." 176 By retaining the final say in the confir-mation battle, Congressional members are able to control who is ulti-mately confirmed and which views will dominate within the agency. 177

Congress also controls administrative agencies through the powerof the purse. The coercion of conditional funding is a significant con-straint on agency policy choices. 178 This ability of Congress to "use itspower over the purse to threaten an agency with loss of funding if itdoes not cooperate" serves as a powerful inducement for the administra-tive agency to tow the Congressional line. 179 Thus, it is unlikely that anagency will veer too far away from the tacit goals of Congress.

Lastly, no discussion of external mechanisms of influence would becomplete without a brief mention of the somewhat obvious influencethat individuals and corporations have on administrative agencies. Be-cause agencies are deliberatively representative and responsive to thepublic, 8 ' they expose themselves to outside influence. However, agen-cies are "not generally susceptible to electoral influence, as its membersare not elected by the public at large." 181

Despite the inability of individuals and corporations to use electo-ral pressures to influence agency determinations, these groups still haveother resources to influence agency policy. By using "iron triangles" and"issue networks," associations of individuals and corporations can aggre-gate their voices into an interest group and articulate their views to theagency.182 These aggregated views are often expressed in informal meet-ings, covert bribes, persuasive policy information, and other forms. 183

175 See 15 U.S.C. § 78(d)(a) (2006).176 Peter Strauss, The Rulemaking Continuum, 41 DUKE L. J. 1463, 1477 (1992).

177 See id.178 See Michael Schroeder & Greg Ip, Imperfect Guardian: SEC Faces Hurdles Beyond Low

Budget in Stopping Fraud Legal Limits, Entrenched Ways Will Affect How Well It Meets New Expec-tations, WALL ST. J., July 19, 2002, at Al. Schroeder and Ip studied the SEC and found numer-ous examples of how funding to the SEC was reduced when the SEC sought quick enforcementof securities violations. According to the authors, part of the reason why the SEC is consideredto be "dragging its feet" at times is due to the fear of Congressional backlash. Id.

179 Lyons & Scheb, supra note 57, at 526.

180 See supra Part 11(B).

181 Heminway, supra note 43, at 323.182 See Lyons & Scheb, supra note 57, at 529.

183 Id.


One need only look at the Sarbanes-Oxley Act to reveal the role

that groups can play on influencing administrative agencies. When theSEC was contemplating proposed regulations to regulate attorney con-

duct, the American Bar Association waged a political battle with theagency and routinely sought to influence the SEC.184 Ultimately, theABA was successful. Indeed, "the ABA suggestions were not withouteffect. The SEC stated that its proposed rules incorporate some addi-tional provisions derived from legal commentators and from the ABAproposals themselves."' 85 Clearly, interest groups are able to affect theultimate output of administrative agencies. This observation shouldprovide us with caution before we choose to defer to administrativeagencies in the development of attorney conduct rules.

C. The Courts

The federal judiciary "historically ha[s] been the least likely [actor]to be subject to outside influences and bias."' 86 Indeed, one of thehallmarks of the federal judiciary has been its staunchly-maintained in-sulation from other branches and special interests.187

Part of the reason for the federal courts' ability to resist outsideinfluence has been the Constitutional protections built-in for judges. In

this regard, the Constitution specifies that judges receive life terms andtheir salaries are inured against diminution, provisions that the Framersostensibly included in an effort to dilute the influence of Congress andthe President on federal judges.' 88 Professor Geyh has noted that"[flederal judges are ... rendered autonomous in the limited sense thatthey have an enforceable monopoly over 'the judicial power,' and areinsulated from two discrete forms of influence or control, namely,threats to their tenure and salary. '"189

184 See, e.g., Stewart M. Young, Whistleblowing in a Foreign Key: The Consistency of Ethics

Regulation Under Sarbanes-Oxley with the WTO GATS Provisions, 32 DENV. J. INT'L L. & POL'Y

55, 73 (2003) (describing ABA lobbying).185 Id.186 Heminway, supra note 43, at 327.

187 See KOMESAR, IMPERFECT ALTERNATIVES, supra note 13, at 141.188 See U.S. CONST. art. III, § 1 ("The judges, both of the supreme and inferior courts, shall

hold their offices during good behaviour, and shall, at stated times, receive for their services, a

compensation, which shall not be diminished during their continuance in office.").189 Charles G. Geyh, Judicial Independence, Judicial Accountability, and the Role of Constitu-

tional Norms in Congressional Regulation of the Courts, 78 IND. L.J. 153, 159 (2003) [hereinafter

Geyh, Judicial Independence].

[Vol. 6:57


By the same token, however, it is important to note that in thecontext of "uniform" federal attorney conduct rules, the executive andthe legislature both might be able to exert influence over the ultimateauthority of the Court. Indeed, unlike a normal case or controversy,Congress and the President both have direct input and overview in thefederal judiciary rulemaking context. Recall that the President, throughthe Attorney General, can seek to influence the judiciary and can lodgeobjections to proposed rules.' 90 Additionally, no "uniform" rule can beeffective unless Congress passes an Act authorizing such a rule.19' Thus,in this context, the Court might be subject to external pressures.

In terms of an internal bias, it is important to note that mostjudges are culled from the ranks of those who have graduated law schooland have some connection (whether or not it is tangential) with thepractice of law.192 Thus, it is likely that most judges will approach theissues with some sort of bias towards their particular experience in thelaw. However, because the background of judges is varied and mostjudges never resign from the bench for other employment, there is lessinternal pressure for a judge to feel beholden to a particular interest. 19 3


As a general matter, it seems that self-regulatory institutions are themost prone to internal bias. This idea flows from the very nature of aself-regulatory institution; it is, by definition, made up of the very peo-ple that it is supposed to regulate. Thus, there is a somewhat naturalfear that the "fox is guarding the henhouse." Rather than see this fear asfar-fetched, several prominent academic scholars have picked up on thistheme, and have questioned whether these self-regulatory institutionscan really produce an impartial set of professional responsibility rules.For example, Professor Jethro Lieberman has previously argued that theABA could never overcome the "conflict of interest inherent in balanc-ing self-interest against public and client interest."' 94 Lieberman advo-cated that the Judicial Conference of the United States should draftattorney conduct rules, largely because Lieberman perceived the Judicial

190 See supra note 113 and accompanying text.191 See id.192 See Geyh, Judicial Independence, supra note 154, at 1219.

193 See generally Evan R. Seamone, Understanding the Person Beneath the Robe: Practical Meth-ods for Neutralizing Harmful Judicial Biases, 42 WILLAMETTE L. REv. 1 (2006).

194 JETHRO LIEBERMAN, CRISIS AT THE BAR: LAWYER'S UNETHICAL ETHICS AND WHAT TO

Do ABOUT IT 217 (1978).


Conference as more neutral and less prone to internal bias.' 95 On asimilar vein, Professor Deborah Rhode has criticized past ethical codesby noting that these codes "[c]onsistently resolved conflicts betweenprofessional and societal objectives in favor of those doing theresolving." 1

96

In defense, the ABA has tried to include non-lawyers in the fray.For example, the Ethics 2000 Commission proudly noted that its mem-bership included open-minded and objective members, including "[a]non-lawyer member, who is a former college president and member ofnumerous corporate boards."' 97 Additionally, the commissions taskedwith promulgating ethics rules have sought to include law professorsand academics, who might have less "internal bias" towards protectingpracticing lawyers. 198 Rather than see this as a recent effort to combatpartiality, one should note that the ABA has been trying to include non-lawyers in the drafting of ethics rules since the promulgation of theModel Rules in 1983.199 What effect these few non-lawyers have on theactual output of the ABA's rules is ultimately unclear and debatable.2"'

From an external perspective, there are opportunities for outsidegroups to affect and unduly manipulate the work of self-regulatory insti-tutions. The most damaging criticism against the ABA is that privatelaw firms have had undue influence in affecting the final legal ethicsrules. For example, Philip Shuchman has argued that repeated iterationsof attorney conduct rules reflect the reality that private law firms havemanipulated the ABA to their own advantage. Shuchman points to theABA Canons, which prohibited solicitation of clients, personal loans to

195 See id.196 Deborah Rhode, Why the ABA Bothers: A Functional Perspective on Professional Codes, 59

TEx. L. REv. 689, 692 (1981).197 See Charlotte Stretch, Overview of Ethics 2000 Commission and Report, supra note 128.

The same report also notes, though, that twelve of the other thirteen members were lawyers:Members included a state supreme court chief justice, a federal circuit court judge, astate court trial judge, a retired judge who is also a former dean and law professor, twoprofessors of legal ethics, one of whom was the principal drafter of the Model Rules, alawyer formerly with the Department of Justice, several private practitioners, [and] a

former in-house counsel ....

Id.198 See id

199 See, e.g., Schneyer, Professionalism, supra note 133, at 695 (noting that two non-lawyers

were added to the ABA's Commission on drafting Model Rules in 1978).200 See id (defending the ABA's procedures as adequately reflecting non-lawyers' concerns);

c.f Rhode, supra note 196 (noting that the ABA considers non-lawyers' perspectives tooinadequately).

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clients, fee-splitting, and below-minimum fees (all of which are tacticsthat "Little Lawyers" might use).2"' Yet, at the same time, the ABACanons allowed intra-firm referrals and meeting prospective clients atcountry clubs.2 °2 This, in Shuchman's eyes, is evidence of external ma-nipulation and partisanship.20 3 While claims of external partisanshiphave continued, the most serious criticism of self-regulatory institutionshas been the undue internal bias.

One can summarize the comparative institutional impartiality asfollows:

COMPARATIVE INSTITUTIONAL IMPARTIALITY SUMMARY

Congress Congress is extremely prone to outside influence, given its openaccess and representative nature. In this regard, Congress oftensuccumbs to manipulation by strong lobbying groups. Thus, oneshould be cautious in thinking that Congress could pass animpartial attorney conduct code.

ADMINISTRATIVE AGENCIES Like Congress, administrative agencies are also prone to pressurefrom interest groups (although, agencies are not prone to electoralpressure). Agencies also are vulnerable to influence by Congress,because Congress wields control over budgetary and oversightpowers. A recent example of lobbying by the ABA shows thatagencies are particularly vulnerable to outside lobbying.

THE COURTS The Courts are probably the most insulated and protected branchfrom outside influence. This insulation stems from Constitutionalprotections, and reduced ability to access/influence judges. How-ever, in the "uniform" rulemaking context, it is important toremember that both the Executive and the Legislature exerts someoversight power over the Judiciary.

SELF-REGULATORY Claims of self-regulatory institutions acting in a partial and biasedINSTITUTIONS manner run rampant. Indeed, there is ample evidence to believe

that these institutions often enact rules that are favorable to theirown interests (at the expense of others). Also, some have claimedthat the ABA is vulnerable to the same lobbying pressures asother groups (for example, private law firms seem to have a privi-leged role in the ABA rulemaking context).

CONCLUSION

Against this backdrop, one can now surmise some comments onthe institutional choice question with respect to the development of at-torney conduct rules. At the risk of oversimplification, the followinggeneralizations can be made:

201 Philip Shuchman, Ethics and Legal Ethics: The Propriety of the Canons as a Group Moral

Code, 37 GEO. WASH. L. REv. 244, 268 (1968).202 See id.

203 See id


" While Congress has the greatest authority to enact attorney conductrules (through its constitutional and statutory power), it seems tohave only limited institutional expertise in this field and is particu-larly prone to outside influence. Thus, there appears to be few ben-efits to having Congress actually promulgate the specifics of anattorney conduct code.

" Administrative agencies only have power to act when Congress ex-pressly grants them this power. However, when Congress doesgrant this power, agencies benefit from a (relatively) institutional-ized system for proposing rules and soliciting comments from inter-ested parties. Certainly, agencies are vulnerable to some outsideinfluence, but this may be tempered by the fact that agency headsare not elected (and, thus, the agency work product is immune fromelectoral influence).

" The federal courts have power to make attorney conduct rules pur-suant to the Rules Enabling Act. The Act specifies that, when theSupreme Court proposes "uniform" rules, both Congress and theExecutive should retain a level of oversight/comment. Courts doseem to benefit from a highly structured process for proposing andenacting rules, but this process, however, comes at a cost as it is anextremely time-consuming endeavor. Nonetheless, there is reasonto think that judges have some institutional expertise to know whatattorney conduct rules are appropriate. Courts are a particularlyattractive institutional actor because, generally, the courts are im-mune from outside lobbying.

" Self-regulatory institutions have generally been the default draftersof attorney conduct rules over the past century. While these institu-tions have no inherent authority, the institutions (primarily, theAmerican Bar Association) have been effective at convincing legisla-tures and courts to adopt their proposed rules. While these institu-tions have generally had extremely elaborate procedures for enactingrules, these procedures do not seem to involve significant commentfrom non-lawyers, raising fears that these institutions will sufferfrom myopia.

These conclusions are open to interpretation, and reasonable

minds can disagree, but using the framework described herein one can

advance arguments backed by intellectual arguments. In this regard,should a day arise when Congress commits itself to regulating attorney

conduct, it would be best for Congress to then engage in a two-stepinstitutional choice analysis. The first step is for Congress to determinewhether the attorney conduct rules are needed to respond to either a

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pressing exigency, or whether there is no time pressure to enact therules.

If the rules are needed in a time-sensitive manner (or to address aparticular problem, like the Enron/WorldCom corporate fraud scandal),then Congress ought to create a basic framework for having the appro-priate administrative agency fill in details that Congress is not equippedto put forth in a such a limited time. Congress can be reasonably as-sured that an agency will hear comments from all affected parties, 20 4 andthe agency will respond to all relevant comments in a reasoned man-ner. 2 5 Delegating to an agency, as opposed to the courts, will ensurethat the rules will be specific (as Congress must choose which agency todefer to) and that the rules will be promulgated relatively efficiently.Deference to an agency (as opposed to delegation to a self-regulatoryinstitution) in this context is preferable because self-regulatory institu-tions have exhibited a certain level of bias towards self-protection (whichwould not be appropriate in the context of an exigency, like the Enron/WorldCom scandal). Also, delegation to an agency will ensure that theagency will ultimately wield control, but that affected institutions canstill provide input through "notice and comment."

If Congress is not responding to a timely exigency, then Congress'delegation should turn on how much of the field of attorney conductCongress wishes to regulate. If Congress wishes to regulate a relativelyspecific field (such as the conduct of securities lawyers), then it ought todelegate to an agency. Agency expertise is likely to be much greaterwhen the agency deals with a problem within its field of regulation.However, if Congress hopes to regulate the entire field of attorney con-duct, then deference to the judiciary is preferable. Courts are particu-larly well-suited in this context because judges are adept at applying andmolding discrete subjects into a coherent, broad philosophical view oflaw. Courts are preferable to self-regulatory institutions because courtsare less immune to both internal and external bias.

This model suggests that Congress should not itself draft attorneyconduct codes. Rather, given the generalist nature of Congress, the leg-islature should delegate to others that have more time and institutionalexpertise. Rather than view this as sapping its own power, Congress

204 See supra Part II.B (noting the requirement that agencies must provide notice and com-

ment in the context of rulemaking).205 If an agency fails to respond to the comments, a court will overturn the agency's rules on

review as being "arbitrary and capricious." See id.

CARDOZO PUB. LAW, POLICY & ETHICS J [

should see this delegation as adding a helpful layer of knowledge, whilealso allowing Congress to retain its oversight ability over the final legisla-tive product.

Again, though, it is important to note that these conclusions areopen to interpretations and reasonable minds can disagree. Yet, per-forming the basal institutional analysis work allows jurists and scholarsto debate these grounds on the basis of intellectual arguments, ratherthan on subjective assumptions.

While it is difficult to derive conclusive answers to the question ofinstitutional choice, it is nevertheless important that the question of le-gal process is asked and considered. Professor Schneyer has previouslysuggested three reasons as to why the institutional choice question mat-ters at all. First, "Illegal decision-makers often act on their own assump-tions about institutional competence. In so doing, they affect theallocation of regulatory authority."2"6 Rather than operate on assump-tions (which may or may not be correct), we could benefit immenselyfrom reasoned analysis. Second, Schneyer has argued that given the"It]urf wars [that] have broken out on several regulatory fronts lately," itis imperative that we seek to address these difficult questions of institu-tional choice before we allow one actor to seize control over the processof developing rules.20 7 Lastly, "It]he roles of many pertinent institutionsare presently in flux, so that authority is 'up for grabs' as never beforeand decision makers will be in the market for relevant policy analy-sis." 2 8 Thus, given the changing nature of legal professional responsi-bility rules, we as legal scholars are not only uniquely-positioned, butindeed obligated to address these tough questions about institutionalchoice in the context of developing attorney conduct rules.

206 Schneyer, Legal Process Scholarship, supra note 14, at 42.207 Id. at 44.208 Id.

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Documents

the effect of institutional choice on rule outcomes