Law Professor to Serve on National Ethics Commission

UA law professor Ted Schneyer, an expert on ethics and regulation, will serve on a national commission that will make recommendations affecting the future of ethical codes and regulation in law.

University of Arizona law professor Ted Schneyer has focused his research on ethics and regulation in the legal field for over three decades. He even suggested in a 1991 article that sizable law firms should be subject to disciplinary sanctions in order to deter professional misconduct within their walls.

Over the course of his career, Schneyer, the the Milton O. Riepe Professor of Law at the James E. Rogers College of Law, has come to believe that it's time to consider overhauling the regulation of law practice.

That time may be coming.

Carolyn B. Lamm, president of the American Bar Association, announced the creation of the Commission on Ethics 20/20 during the organization's annual meeting in August – naming Schneyer to the group.

The commission, which Lamm founded, is composed of distinguished legal scholars, attorneys, bar leaders and state and federal judges from across the nation.

Concerns about the growing involvement of the federal government in the field and the effects of both technology and globalization on the field served as the impetus for creating the commission.

"Technological advances and globalization have changed our profession in ways not yet reflected in our ethics codes and regulatory structure," Lamm said in a statement released by the ABA.

Ethicals issues, she emphasized, are at the top of her list of priorities for the coming year.

"Technologies such as e-mail, the Internet and smart phones are transforming the way we practice law and our relationships with clients, just as they have compressed our world and expanded international business opportunities for our clients," she said.

The commission co-chairs are Michael Traynor, a San Francisco lawyer and former American Law Institute president, and Jamie Gorelick, formerly a deputy attorney general of the United States and general counsel to the Defense Department and now a partner in a large international law firm. The group met for the first time earlier this month in Washington, D.C. 

The commission will evalute many of the issues Schneyer, a national leader in the areas of legal ethics and the regulation of law practice, has long studied. He also has a forthcoming article to be published publish in the ABA’s Journal of the Professional Lawyer on the subject of regulations.

The group will review the ABA's Model Rules of Professional Conduct, an ethics code drafted by the association and adopted with local amendments by the state supreme courts. It also will evaluate processes of lawyer regulation, taking into consideration what is happening in Australia and the United Kingdom. 

Reforms in those countries include authorization for lawyers to practice in law firms that have partners who are nonlawyers, firms that raise capital from outside investors, and so-called “multidisciplinary practices” in which lawyers join with other professionals to provide a broad range of services, Schneyer said.

"Also, other countries are adopting firm-based regulation and the use of fines as a disciplinary sanction," Schneyer said, noting that the common practice in the U.S. is to sanction the individual lawyer. 

But Schneyer questions that if a firm, for instance, does not have mechanisms in place to prevent its lawyers from adhering to ethical practices, perhaps the firm should also be held responsible. 

"It is also the function of a term I believe I coined: 'ethical infrastructure,'" Schneyer said. "It is the infrastructure of the law firms themselves and the functions within them and if they do not have systems in place to detect a conflict of interest."

Because of the historical similarities between the legal systems in the U.S., Australia and the United Kingdom, Schneyer said reforms they have begun adopting should be considered in the U.S.

"The commission may have to evaluate foreign reform for possible adoption here not only on their substantive merits but also in terms of whether they could be implemented in a way that maintained the primacy of state court regulation," he said.

Schneyer added: "The commission’s work may ultimately be quite influential because the ABA, though a voluntary membership association with no power to make or enforce the 'law of lawyering,' nonetheless has tremendous influence on the development of that law and of enforcement mechanisms both in the states and in Washington."

Its code, for instance, is upheld by lawyers and state courts across the nation and courts. Also, following ABA guidance, courts have begun to enforce rules that make it easier for lawyers to temporarily practice in more than one state, much like other countries. 

Schneyer said given the complexity of the work, it could take three years before the commission drafts a proposal to be considered by the ABA's House of Delegates, the association’s ultimate policymaking body.

Yet he is enthusiastic to begin the discussion. 

"It is a blue-ribbon commission," he said. "This is a political process, but I am impressed."