There is a felt need for the legal profession to change, to improve. One can see it in the proposed government mandates: mandatory CLE, mandatory disclosure of insurance, mandatory (?) mentoring and mandatory pro bono. In Connecticut no where is that requirement to change more evident than in the new (as of July 2007) lawyer advertising regulatory rules, a drain on practicing lawyers and government resources that seems quite disproportionate to the “problem” of lawyer advertising.
The prospect of government regulation is neither the only nor the most significant reason for lawyers to find “ways to do better.” (In fact, the prospect of government regulation as well as government regulation may well have the opposite effect; may actually impede or distract from more effective ways of improving the legal profession.)
One could rightly say that under the Rules of Professional Conduct lawyers have a continuing obligation to try to do better. A simple example is Rule 1, Competence. Because law in its many forms continually changes, to establish and maintain continued competence lawyers must continually study the changes that affect their areas of practice. In that sense, CLE has been mandatory – has been an inherent professional obligation – for a very long time. What is new, and what I think is potentially counterproductive, is government regulation, government monitoring of lawyer CLE and lawyer reporting obligations relating to CLE.
Lawyers should try to do better because there is a fundamental professional obligation to do better. There is a professional obligation to learn. There is a professional obligation to contribute to the community. There is a professional obligation to help young lawyers. None of this is new.
Now, however, there is a need to demonstrate (a) that the legal profession embraces (and has long embraced) these obligations and (b) has long fulfilled these obligations in countless, private ways.
The CBA, individual sections, law firms and individual lawyers have opportunities to promote those values and to demonstrate how they are fulfilling them. The question is how best to take advantage of those opportunities? How can the CBA, individual sections, law firms and lawyers demonstrate that lawyers and the legal profession value and reward CLE, pro bono, and mentoring?
Is advertising part of the answer? Is the creation of “best practices” standards part of the answer? Is creating incentives for CLE, pro bono and mentoring part of the answer? (see Nudge: Improving Decisions About Health, Wealth, and Happiness by Richard H. Thaler and Cass R. Sunstein). Is promoting civility part of the answer? (see Choosing Civility: The Twenty-five Rules of Considerate Conduct by P. M. Forni)