The ABA Standing Committee on Professional Regulation wants lawyer regulation to be preventative. It seeks comments by April 15 on a draft resolution and report encouraging state supreme courts to study and adopt tailored Proactive Management-Based Regulation (PMBR). The Standing Committee developed the report with the ABA Young Lawyers Division Ethics and Professionalism Committee.
PMBR helps lawyers develop ethical infrastructures aimed at preventing misconduct. Traditionally, much of the lawyer regulatory process has been complaint-driven and reactive. However, a majority of complaints are for what’s considered “lesser misconduct,” like a lack of communication or neglect. PMBR proponents believe that many of these complaints could be avoided if lawyers had practice management skills to help them identify and avoid misconduct.
PMBR programs help lawyers to assess where they need additional skills training, to obtain that education and to develop preventative ethical infrastructures. This may be especially helpful for young lawyers who’re beginning to develop their practice habits.
PMBR operates independent of the disciplinary process. Therefore noncompliance doesn’t lead to immediate disciplinary action. In fact, information shared with the regulator as part of PMBR isn’t used by a disciplinary agency. Instead, the information is held confidentially and used to support the preventive nature of the program.
Illinois was the first jurisdiction to adopt PMBR. Along with Colorado, the Illinois Supreme Court implemented PMBR in 2017. PMBR isn’t one size fits all. For instance, Illinois’ program is mandatory for lawyers without malpractice insurance, while Colorado’s is voluntary.
The Illinois program requires lawyers to complete a four-hour interactive, online self-assessment of their practice. The assessment includes eight interactive modules: (1) technology and ethics; (2) conflicts of interest; (3) fees, costs and billing practices; (4) effective client-lawyer relationships; (5) client trust accounts; (6) lawyer well-being; (7) professionalism and civility; and (8) diversity and inclusion.
Illinois lawyers with malpractice insurance may take the PMBR programming voluntarily. CLE credit is available for those who complete the assessment.
The effectiveness of the relatively new programs has yet to be studied. However, the programs have been rated positively in both Illinois and Colorado. Australia and some Canadian provinces have implemented PMBR with good results. In addition, several other U.S. jurisdictions are studying the system.
Please email comments by April 15 to Regulation and Global Initiatives Counsel Ellyn S. Rosen at ellyn.rosen@americanbar.org. The Standing Committee will file the resolution for consideration by the ABA House of Delegates at the 2019 Annual Meeting.
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