Nonlegal Regulation of the Legal Profession: Social Norms in Professional Communities

In this Article, Professor Wendel analyzes the advantages and disadvantages of community-based responses to unethical behavior by lawyers. The limits of formal legal regulation of the legal profession are well known. Additional questions have been raised about the efficacy of motivating lawyers to act ethically merely by giving appropriate instruction. What is left, therefore, is a complex and little-studied, but very real, array of informal sanctions. These sanctions are controlled by individual members of the professional community, not by the court or organized bar, and therefore operate largely without the transparency and procedural regularity of formal legal regimes. The advantage of this decentralized sanctioning process is that punishment can often be imposed quickly, and with relatively low transaction costs, because an enforcement agency is not required to engage in expensive information-gathering processes. Informal regulation of legal norms also avoids some of the difficulties that would arise if ethical norms were em- bodied in formal disciplinary rules.Professor Wendel, however, cautions against becoming overly enthusiastic about informal, community-based sanctions. A professional community that is too inward-looking, that is content to regulate itself without checks from the outside, may develop pernicious norms as well as beneficial ones. Furthermore, the resistance to external sources of normative control can make a community slow to change. Informal sanctioning practices can sometimes be used against unpopular or less powerful subcommunities, and members of these communities may be stymied in their attempt to reform the community's practices by the lack of extra-community regulatory authority. Community-based sanctions can also spiral out of control and spawn endless feuds. Because the sanctioning authority is another community member, the lawyer who is sanctioned may retaliate in kind, and possibly overretaliate, prompting a further round of sanctioning. Finally, even if one approves in general of informal regulation of professional communities, it is difficult to apply this kind of regulatory scheme to large-scale, impersonal settings such as the community of practicing lawyers in major commercial centers.Professor Wendel does not argue for the complete adoption or rejection of community-based sanctions. Rather, the claim developed in this Article is that courts, legislatures, and the organized bar ought to be sensitive to the advantages and pathologies of formal legal regulation, on the one hand, and of informal regulation on the other. In the case of the legal profession, some areas of conduct are best left to informal control by local communities, while others are appropriately the province of formal regulation.