Core values: False and true

Fordham Law Review

Volumn 70, Issue 3, 2001, Pages 747-774

  Crystal, Nathan M ^a  

^a NONE

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EID: 0346491826     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (152)

1. Oscar Wilde, Lady Windermere's Fan, Act 3, at 45 (Peter Raby ed., 1995) (1892).
2. See Internet Encyclopedia of Philosophy, at http://www.utm.edu/research/iep/ c/cynics.htm (last visited Sept. 10, 2001) (defining "Cynics").
3. See, e.g., Gary L. Bakke, Will the Real Lawyers Please Stand Up?, Wis. Law., May 2001, at 5; Rusty Robnett, Core Values, The Advoc., May 2001, at 4; Molly Shepherd, Core Values, In My Eyes, Mont. Law., Apr. 2001, at 4; see also Robert MacCrate, quoted in John Gibeaut, "It's a Done Deal": House of Delegates Vote Crushes Chances for MDP, A.B.A. J., Sept. 2000, at 92.
4. See, e.g., Gary L. Bakke, Will the Real Lawyers Please Stand Up?, Wis. Law., May 2001, at 5; Rusty Robnett, Core Values, The Advoc., May 2001, at 4; Molly Shepherd, Core Values, In My Eyes, Mont. Law., Apr. 2001, at 4; see also Robert MacCrate, quoted in John Gibeaut, "It's a Done Deal": House of Delegates Vote Crushes Chances for MDP, A.B.A. J., Sept. 2000, at 92.
5. See, e.g., Gary L. Bakke, Will the Real Lawyers Please Stand Up?, Wis. Law., May 2001, at 5; Rusty Robnett, Core Values, The Advoc., May 2001, at 4; Molly Shepherd, Core Values, In My Eyes, Mont. Law., Apr. 2001, at 4; see also Robert MacCrate, quoted in John Gibeaut, "It's a Done Deal": House of Delegates Vote Crushes Chances for MDP, A.B.A. J., Sept. 2000, at 92.
6. See, e.g., Gary L. Bakke, Will the Real Lawyers Please Stand Up?, Wis. Law., May 2001, at 5; Rusty Robnett, Core Values, The Advoc., May 2001, at 4; Molly Shepherd, Core Values, In My Eyes, Mont. Law., Apr. 2001, at 4; see also Robert MacCrate, quoted in John Gibeaut, "It's a Done Deal": House of Delegates Vote Crushes Chances for MDP, A.B.A. J., Sept. 2000, at 92.
7. See infra note 9 and accompanying text. Robert MacCrate, former President of the ABA and a leader of the opposition to proposals allowing lawyers to participate in MDPs, stated, "[t]he action of the House of Delegates sends a clear message to would-be buyers and sellers [of law practices] that to preserve its core values, the American legal profession is not for sale." Gibeaut, supra note 3, at 92.
8. Model Rules: ABA Stands Firm on Client Confidentiality, Rejects "Screening" for Conflicts of Interest, 17 Law. Manual on Prof'l Conduct (ABA/BNA) No. 17, at 492 (Aug. 15, 2001) [hereinafter Model Rules: ABA Stands Firm].
9. For the history of these developments, see Center for Professional Responsibility, at http://www.abanet.org/cpr/home.html (last visited Sept. 1, 2001).
10. See Gibeaut, supra note 3, at 92.
11. Charles W. Wolfram, The ABA and MDPs: Context, History, and Process, 84 Minn. L. Rev. 1625, 1648-49 (2000).
12. ABA House of Delegates Resolution adopted July 2000, at http://www.abanet.org/cpr/mdprecom10F.html (last visited Sept. 2, 2001) [hereinafter ABA Core Values Resolution].
13. Id. § 1(d).
14. See Eugene R. Gaetke, Lawyers as Officers of the Court, 42 Vand. L. Rev. 39 (1989).
15. See Nathan M. Crystal, Limitations on Zealous Representation in an Adversarial System, 32 Wake Forest L. Rev. 671 (1997).
16. ABA Core Values Resolution, supra note 9, § 1(e).
17. Model Rules of Prof'l Conduct R. 3.1 (1996).
18. R. 3.3(a)(4).
19. R. 3.3(a)(3).
20. R. 3.5.
21. R. 3.4.
22. R. 4.1.
23. R. 4.4.
24. See Gaetke, supra note 11.
25. R. 1.7(b).
26. R. 2.2.
27. R. 1.10(a).
28. Lawrence J. Fox, All's O.K. Between Consenting Adults: Enlightened Rule on Privacy, Obscene Rule on Ethics, 29 Hofstra L. Rev. 701, 728 (2001).
29. See Daniel R. Fischel, Multidisciplinary Practice, 55 Bus. Law. 951, 966 (2000).
30. ABA, Opinions of the Committee on Professional Ethics (1967) (containing annotated 1908 Canons of Ethics) [hereinafter ABA, Opinions].
31. Id. at 22.
32. Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 518 F.2d 751 (2d Cir. 1975). The holding of Silver Chrysler Plymouth is reflected in Model Rules of Prof'l Conduct R. 1.9(b).
33. See, e.g., Brasseaux v. Girouard, 214 So. 2d 401 (La. Ct. App. 1968) (discussing authorities).
34. Ethics 2000 Commission, Proposed R. 1.10(a), at http://www.abanet.org/cpr/ e2k-final_rules2.html (last visited Oct. 16, 2001) [hereinafter Ethics 2000 Proposals].
35. Compare Model Rules of Prof'l Conduct R. 1.10(a) (1996), with R. 1.11 and R. 1.12. See generally Nathan M. Crystal, Professional Responsibility: Problems of Practice and the Profession 304-05 (2d ed. 2000) [hereinafter Crystal, Professional Responsibility] (discussing the scope of the screening rule).
36. ABA Ethics 2000 Commission Proposed Rule 1.10(c) provided as follows: (c) When a lawyer becomes associated with a firm, no lawyer associated in the firm shall knowingly represent a person in a matter in which that lawyer is disqualified under Rule 1.9 unless: (1) the personally disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (2) written notice is promptly given to any affected former client to enable it to ascertain compliance with the provisions of this Rule. Ethics 2000 Proposals, supra note 31, R. 1.10(c).
37. See ABA Ethics 2000 Comm. on Ethics and Prof'l Responsibility, Minority Report of Commissioner Lawrence J. Fox (joined in as to screening by Commissioner Susan Martyn), at http://www.abanet.org/cpr/e2k-dissent.html (last visited Sept. 1, 2001) [hereinafter Fox, Minority Report].
38. See Model Rules: ABA Stands Firm, supra note 5, at 492.
39. Compare Cromley v. Bd. of Educ., 17 F.3d 1059 (7th Cir. 1994) and Manning v. Waring, Cox, James, Sklar & Allen, 849 F.2d 222 (6th Cir. 1988) (screening permitted), with Roberts v. Hutchins, 572 So. 2d 1231, 1234 n.3 (Ala. 1990) (screening prohibited). See also Kala v. Aluminum Smelting & Ref. Co., 688 N.E.2d 258 (Ohio 1998) (finding that screening is generally available to prevent disqualification of firm that hires personally disqualified lawyer but that on the facts of the case, the firm should be disqualified despite screening because of the appearance of impropriety caused by lawyer abandoning client two weeks after seeking continuance to file appeal).
40. Restatement (Third) of the Law Governing Lawyers § 124(2)(a) (2000) [hereinafter Restatement (Third)]. Comment (d) outlines certain factors that can be used to determine whether the information is significant. Id. The New York Court of Appeals has adopted the Restatement approach. See Kassis v. Teacher's Ins. & Annuity Ass'n, 717 N.E.2d 674 (N.Y. 1999).
41. ABA Core Values Resolution, supra note 9, § 1(c).
42. Model Rules of Prof'l Conduct R. 1.6(a) (1996).
43. R. 1.6(b)(1).
44. R. 1.6(b)(2).
45. See Symposium, Executing the Wrong Person: The Professionals' Ethical Dilemmas, 29 Loy. L.A. L. Rev. 1543 (1996).
46. Ethics 2000 Proposals, supra note 31, R. 1.6.
47. See Model Rules: ABA Stands Firm, supra note 5, at 493. In 1991 the ABA considered a proposal to amend Rule 1.6(b) to allow a lawyer to reveal confidential information to "rectify the consequences of a client's criminal or fraudulent act in the commission of which the lawyer's services had been used." The proposal revived an issue that had come before the ABA when the Model Rules were originally adopted. Model Rules of Prof'l Conduct R. 1.6(b) (Proposed Rule 1991). The ABA rejected the proposed amendment by a vote of 251-158, nearly identical to the 2001 vote. See ABA Rejects Ancillary Business, Inroads on Client Confidences, 7 Law. Manual on Prof'l Conduct (ABA/BNA) No. 15, at 258-59 (Aug. 28, 1991).
48. See Model Rules: ABA Stands Firm, supra note 5, at 493. In 1991 the ABA considered a proposal to amend Rule 1.6(b) to allow a lawyer to reveal confidential information to "rectify the consequences of a client's criminal or fraudulent act in the commission of which the lawyer's services had been used." The proposal revived an issue that had come before the ABA when the Model Rules were originally adopted. Model Rules of Prof'l Conduct R. 1.6(b) (Proposed Rule 1991). The ABA rejected the proposed amendment by a vote of 251-158, nearly identical to the 2001 vote. See ABA Rejects Ancillary Business, Inroads on Client Confidences, 7 Law. Manual on Prof'l Conduct (ABA/BNA) No. 15, at 258-59 (Aug. 28, 1991).
49. Ethics 2000 Commission, at http://www.abanet.org/cpr/e2k-summary_2001. html (last visited Sept. 2, 2001).
50. See Model Rules: ABA Stands Firm, supra note 5, at 493; see also Fox, Minority Report, supra note 34, at "Confidentiality" ("To maintain the sanctity of the lawyer-client relationship, the exceptions to confidentiality crafted into our rules must be as narrowly drawn as possible.").
51. See Model Rules: ABA Stands Firm, supra note 5, at 493; see also Fox, Minority Report, supra note 34, at "Confidentiality" ("To maintain the sanctity of the lawyer-client relationship, the exceptions to confidentiality crafted into our rules must be as narrowly drawn as possible.").
52. ABA, Opinions, supra note 27, at 167 (setting forth Canon 37).
53. Id.
54. Id. at 181 (setting forth Canon 41). Canon 41 was adopted in 1928.
55. 8 Wigmore on Evidence § 2292, at 554 (McNaughton ed., 1961). See generally Geoffrey C. Hazard, Jr., An Historical Perspective on the Attorney-Client Privilege, 66 Cal. L. Rev. 1061, 1063 (1978) (discussing crime-fraud and tort exceptions to attorney-client privilege).
56. Restatement (Third), supra note 37, § 82; see Am. Tobacco Co. v. Florida, 697 So. 2d 1249 (Fla. Dist. Ct. App. 1997) (finding tobacco company documents not privileged because of crime/fraud exception).
57. Restatement (Third), supra note 37, § 69, rep. note.
58. Id.
59. For a current description of state-by-state variations prepared by the Attorneys' Liability Assurance Society, Inc., see Thomas D. Morgan & Ronald D. Rotunda, 2001 Selected Standards on Professional Responsibility (Appendix A, following reprinting of Model Rules of Prof'l Conduct).
60. 425 U.S. 391 (1976).
61. Id. at 397.
62. See Harry I. Subin, The Lawyer as Superego: Disclosure of Client Confidences to Prevent Harm, 70 Iowa L. Rev. 1091, 1120-27 (1985).
63. See supra notes 50-51 and accompanying text.
64. See Moran v. Burbine, 475 U.S. 412, 428 (1986).
65. Strickland v. Washington, 466 U.S. 668 (1984).
66. 475 U.S. 157 (1986).
67. Id. at 171.
68. See generally Nancy J. Moore, Limits to Attorney-Client Confidentiality: A "Philosophically Informed" and Comparative Approach to Legal and Medical Ethics, 36 Case W. Res. L. Rev. 177 (1985).
69. Id. at 188-91.
70. Id. at 194; cf. 1 Joel Feinberg, The Moral Limits of the Criminal Law: Harm to Others (1984) (arguing that behavior should not be criminalized unless it is harmful to others).
71. See Daniel R. Fischel, Lawyers and Confidentiality, 65 U. Chi. L. Rev. 1 (1998) (arguing that confidentiality rules benefit lawyers but are of dubious value to clients and society as a whole); Fred C. Zacharias, Rethinking Confidentiality, 74 Iowa L. Rev. 351 (1989) (questioning the wisdom of strict confidentiality rules on both policy and empirical grounds).
72. See Daniel R. Fischel, Lawyers and Confidentiality, 65 U. Chi. L. Rev. 1 (1998) (arguing that confidentiality rules benefit lawyers but are of dubious value to clients and society as a whole); Fred C. Zacharias, Rethinking Confidentiality, 74 Iowa L. Rev. 351 (1989) (questioning the wisdom of strict confidentiality rules on both policy and empirical grounds).
73. See Nathan M. Crystal, Confidentiality Under the Model Rules of Professional Conduct, 30 U. Kan. L. Rev. 215, 225-26 (1982) (using a hypothetical analysis of types of clients that lawyers represent to conclude that a disclosure rule is more likely to reduce harm than a rule of confidentiality); Subin, supra note 57, at 1166-72 (finding instrumental defense less persuasive than rights-based argument for confidentiality); see also Steven Shavell, Legal Advice About Contemplated Acts: The Decision to Obtain Advice, Its Social Desirability, and Protection of Confidentiality, 17 J. Legal Stud. 123 (1988) (developing model dealing with effect of advice and confidentiality on rational decision-making).
74. See Nathan M. Crystal, Confidentiality Under the Model Rules of Professional Conduct, 30 U. Kan. L. Rev. 215, 225-26 (1982) (using a hypothetical analysis of types of clients that lawyers represent to conclude that a disclosure rule is more likely to reduce harm than a rule of confidentiality); Subin, supra note 57, at 1166-72 (finding instrumental defense less persuasive than rights-based argument for confidentiality); see also Steven Shavell, Legal Advice About Contemplated Acts: The Decision to Obtain Advice, Its Social Desirability, and Protection of Confidentiality, 17 J. Legal Stud. 123 (1988) (developing model dealing with effect of advice and confidentiality on rational decision-making).
75. See Fox, Minority Report, supra note 34, at "Confidentiality."
76. See Zacharias, supra note 66, at 376.
77. N.J. Rules of Professional Conduct Rule 1.6(b) provides as follows: (b) A lawyer shall reveal such information to the proper authorities, as soon as, and to the extent the lawyer reasonably believes necessary, to prevent the client: (1) from committing a criminal, illegal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm or substantial injury to the financial interest or property of another; (2) from committing a criminal, illegal or fraudulent act that the lawyer reasonably believes is likely to perpetrate a fraud upon a tribunal. N.J. Rules of Prof'l Conduct R. 1.6(b) (1997).
78. Florida Rules of Professional Conduct Rule 4-1.6(b) provides as follows: (b) When Lawyer Must Reveal Information. A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary: (1) to prevent a client from committing a crime; or (2) to prevent a death or substantial bodily harm to another. Fla. Rules of Prof'l Conduct R. 4-1.6(b) (1998).
79. But see Leslie C. Levin, Testing the Radical Experiment: A Study of Lawyer Response to Clients Who Intend to Harm Others, 47 Rutgers L. Rev. 81 (1994) (expressing doubt about the wisdom of New Jersey's mandatory disclosure rule based on a survey of lawyers).
80. The exception found in Model Rule 1.6(b)(2) is sometimes referred to, even by critics of confidentiality, as the self-defense exception, but this is a misnomer. See, e.g., Fischel, supra note 66, at 10-11. The rule allows lawyers to disclose confidential information in self-defense, but it also allows lawyers to disclose when asserting affirmative claims.
81. ABA Core Values Resolution, supra note 9, § 1(f).
82. Deborah L. Rhode, Access to Justice, 69 Fordham L. Rev. 1785, 1785 & n.1 (2001).
83. Id. at 1793-97.
84. Id. at 1809-10.
85. Greg Winter, Legal Firms Cutting Back On Free Services for Poor, N.Y. Times, Aug. 17, 2000, at A1.
86. Id.
87. Id.
88. Id.
89. Id.
90. ABA, Opinions, supra note 27, at 19 (setting forth Canon 4).
91. Id. at 131 (setting forth Canon 29).
92. Ethical Consideration 2-25 stated that the "basic responsibility for providing legal services for those unable to pay ultimately rests upon the individual lawyer . . . . Every lawyer, regardless of professional prominence or professional workload, should find time to participate in serving the disadvantaged." Model Code of Prof'l Responsibility EC 2-25 (1981). EC 8-3 stated that "[t]hose persons unable to pay for legal services should be provided needed services." EC 8-3. EC 8-9 stated that "[t]he advancement of our legal system is of vital importance in maintaining the rule of law . . . [and] lawyers should encourage, and should aid in making, needed changes and improvements." EC 8-9.
93. Model Rules of Prof'l Conduct R. 6.1 (1983).
94. Model Rules of Prof'l Conduct R. 6.1 (1993).
95. Margaret Colgate Love, ABA Ethics 2000 Commission Final Report -Summary of Recommendations, § 34, at http://www.abanet.org/cpr/e2k-mlove_article. html (June 9, 2001).
96. Committee to Improve the Availability of Legal Services: Final Report to the Chief Judge of the State of New York (1990), reprinted in 19 Hofstra L. Rev. 755 (1991). For a summary of the report and a critical review of the literature in support of and in opposition to mandatory pro bono, see Crystal, Professional Responsibility, supra note 32, at 481-86.
97. Committee to Improve the Availability of Legal Services: Final Report to the Chief Judge of the State of New York (1990), reprinted in 19 Hofstra L. Rev. 755 (1991). For a summary of the report and a critical review of the literature in support of and in opposition to mandatory pro bono, see Crystal, Professional Responsibility, supra note 32, at 481-86.
98. See, e.g., Fla. Rules of Prof'l Conduct R. 4-6.1(b) (1998) (Florida is the largest state with such a requirement).
99. Love, supra note 88, § 34.
100. ABA Comm'n on Nonlawyer Practice, Nonlawyer Practice in the United States: Summary of the Factual Record Before the Commission (1994).
101. ABA Core Values Resolution, supra note 9, § 6.
102. See Deborah L. Rhode, The Delivery of Legal Services by Non-lawyers, 4 Geo. J. Legal Ethics 209, 232-33 (1990).
103. Charles W. Wolfram, Lawyer Turf and Lawyer Regulation - The Role of the Inherent-Powers Doctrine, 12 U. Ark. Little Rock L.J. 1, 7 (1989-1990); see also Charles W. Wolfram, Modern Legal Ethics § 2.2 (1986) [hereinafter Wolfram, Modern Legal Ethics]. The affirmative inherent powers doctrine provides that courts have the inherent power to regulate certain matters, including the legal profession, even in the absence of legislative authorization. Id. § 2.2.2. In its positive form, the doctrine does not limit the power of other branches of the government. Id. 96. ABA Res., ABA House of Delegates, 114 ABA Reports, No. 1, at 35 (1989).
104. Charles W. Wolfram, Lawyer Turf and Lawyer Regulation - The Role of the Inherent-Powers Doctrine, 12 U. Ark. Little Rock L.J. 1, 7 (1989-1990); see also Charles W. Wolfram, Modern Legal Ethics § 2.2 (1986) [hereinafter Wolfram, Modern Legal Ethics]. The affirmative inherent powers doctrine provides that courts have the inherent power to regulate certain matters, including the legal profession, even in the absence of legislative authorization. Id. § 2.2.2. In its positive form, the doctrine does not limit the power of other branches of the government. Id.
105. ABA Res., ABA House of Delegates, 114 ABA Reports, No. 1, at 35 (1989).
106. 980 S.W.2d 560 (Ky. 1998).
107. Ky. Rev. Stat. Ann. § 342.329 (1997).
108. Id. § 342.320(9).
109. Ky. Bar Ass'n, Formal Op. U-52 (1997).
110. Turner, 980 S.W.2d at 562-63.
111. Id. at 563 (quoting Ex parte Auditor of Public Accounts, 609 S.W.2d 682, 688 (Ky. 1980)).
112. Id.
113. Id. (quoting Foster v. Overstreet, 905 S.W.2d 504, 507 (Ky. 1995)). The court upheld, however, the constitutionality of the statute authorizing the Department to employ workers' compensation specialists. Reviewing the actual practices of the specialists, the court found that they did not involve the practice of law. None of these tasks involved the interpretation or analysis of law. Most of the tasks performed by specialists were procedural and administrative in nature and were similar to services that the court had previously authorized paralegals to perform. Ky. Sup. Ct. R. 3.700. In addition, although the chief specialist was not required by statute to be an attorney, in practice, the chief specialist had always been an attorney. Thus, in operation, the specialists were supervised by a lawyer. Turner, 980 S.W.2d at 564.
114. 2000 WL 249247 (Va. Cir. Ct. Mar. 1, 2000).
115. Va. Code Ann. §§ 6.1-2.19 to 6.1-2.29 (1950).
116. Fears, 2000 WL 249247, at *1.
117. Va. Code Ann. § 6.1-2.21(B).
118. Id. § 6.1-2.21(D).
119. Id. § 6.1-2.26(B).
120. Fears, 2000 WL 249247, at *2-4.
121. Id. at *4.
122. See Va. Code Ann. § 6.1-2.20.
123. Under rules adopted by the Virginia Supreme Court, the practice of law occurs if: (1) One undertakes for compensation, direct or indirect, to advise another, not his regular employer, in any matter involving the application of legal principles to facts or purposes or desires. (2) One, other than as a regular employee acting for his employer, undertakes, with or without compensation, to prepare for another legal instruments of any character, other than notices or contracts incident to the regular course of conducting a licensed business. (3) One undertakes, with or without compensation, to represent the interest of another before any tribunal. Fears, 2000 WL 249247, at *7 (citations omitted).
124. The court found: Preliminarily, activities in Code § 6.1-2.20 that clearly are not the practice of law are placing orders for title insurance, receiving and issuing receipts for money received from the parties, ordering loan checks and payoffs, ordering surveys and inspections, setting the closing appointment, receiving and disbursing funds, sending recording documents to the lender, and sending the recorded documents and the title policy to the buyer. These activities do not require the application of law to fact, do not necessarily involve the giving of legal advice, and, at most, require the creation of documents which . . . are simple and incidental to the regular business of real estate brokers. Id. at *7. The court found that the preparation of settlement statements did not amount to the practice of law. Id. at *8. In addition, handling or arranging for the recording of documents and reporting federal tax information for the real estate sale to the IRS did not necessarily involve the practice of law. Id. at *10.
125. Id. at *8-9.
126. Id. at *10.
127. Id. at *11.
128. Id.
129. Id. at *11-12.
130. Wolfram, Modern Legal Ethics, supra note 95, § 2.2.2.
131. Cal. Bus. & Prof. Code §§ 6000-6228. (1990); N.Y. Jud. Law, §§ 460-496. (1983).
132. 17 P.3d 758 (Cal. 2001).
133. Id. at 762 (citations omitted); accord Obrien v. Jones, 999 P.2d 95 (Cal. 2000) (upholding against a separation of powers challenge the constitutionality of legislation authorizing executive and legislative branches to appoint three of five hearing judges to State Bar Court and eliminating lay judge position from Review Department of State Bar Court). In Paguirigan the court noted that only on "rare occasions" would a legislative enactment significantly impair the court's inherent authority over the practice of law. Paguirigan, 17 P.3d at 763. One of the rare occasions mentioned was Hustedt v. Workers' Compensation Appeals Board, 636 P.2d 1139 (Cal. 1981), where the court held that a statute granting the state workers' compensation board the power to temporarily or permanently prohibit an attorney from practicing before the board was an unconstitutional infringement of the court's inherent authority to regulate the practice of law. The court first recognized that the legislature had a legitimate interest in regulating the legal profession because the legal profession and the practice of law were matters of public interest. Id. at 1143 & n.7. Under the police power the legislature could adopt reasonable regulations of the practice of law so long as legislative action did not "defeat or materially impair the exercise of [the constitutional] functions" of the courts. Id. at 1144 (citation omitted). Having adopted this cooperative standard, however, the court found that the statute in question was unconstitutional because it did materially impair the court's powers. The court reasoned that the statute gave original jurisdiction over discipline to the board and limited judicial review of the board's actions. Id. The court ruled that the board could either refer the matter to the normal attorney disciplinary process or institute contempt proceedings against the lawyer. Id. at 1148-49. Justice Newman dissented on the separation of powers issue. He pointed out that the legislature had authorized nonlawyers to appear before the board and the board had the power to discipline these lay representatives. He reasoned that attorneys who opt to appear before the board should be subject to the same rules and regulations as nonlawyers who represent clients before the board. Id. at 1152 (Newman, J., concurring in part and dissenting in part).
134. 554 N.E.2d 876 (N.Y. 1990).
135. Id. at 884-85.
136. Restatement (Third), supra note 37, § 1, rep. note.
137. "[A] claim of exclusive judicial power to regulate lawyers is well-founded as a general proposition of American constitutional law when intrusion by the executive or legislative branch into the court's power to regulate would significantly prejudice the judicial branch in its essential activity of adjudicating disputes." Id.
138. See supra note 95 (discussing the positive inherent powers doctrine).
139. Restatement (Third), supra note 37, § 1, rep. note.
140. 71 U.S. (4 Wall.) 333 (1866); see also Wolfram, Modern Legal Ethics, supra note 95, § 2.2.5 n.82.
141. Garland, 71 U.S. (4 Wall.) at 379-80.
142. The statute provides as follows: Unsolicited communications. - In the event of an accident involving an air carrier providing interstate or foreign air transportation and in the event of an accident involving a foreign air carrier that occurs within the United States, no unsolicited communication concerning a potential action for personal injury or wrongful death may be made by an attorney (including any associate, agent, employee, or other representative of an attorney) or any potential party to the litigation to an individual injured in the accident, or to a relative of an individual involved in the accident, before the 45th day following the date of the accident. 49 U.S.C. § 1136(g)(2) (1997). The statute is similar to the Florida Rule of Professional ethics, the constitutionality of which the Supreme Court upheld in Florida Bar v. Went for It, Inc., 515 U.S. 618 (1995).
143. 28 U.S.C. §§ 2071-2077 (1984). Section 2074 requires submission of procedural rules approved by the Supreme Court to Congress. Such rules become effective unless disapproved by Congress. Id. § 2074.
144. 20 C.F.R. § 404.949 (2001).
145. 31 C.F.R. § 10.3 (2001).
146. For the classic study of the anticompetitive consequences of professional standards, see Milton Friedman, Capitalism and Freedom (1962); see also Benjamin H. Barton, Why Do We Regulate Lawyers?: An Economic Analysis of the Justifications for Entry and Conduct Regulation, 33 Ariz. St. L.J. 429 (2001) (criticizing present structure of professional regulation and proposing an alternative system narrowly tailored to defensible rationales).
147. For the classic study of the anticompetitive consequences of professional standards, see Milton Friedman, Capitalism and Freedom (1962); see also Benjamin H. Barton, Why Do We Regulate Lawyers?: An Economic Analysis of the Justifications for Entry and Conduct Regulation, 33 Ariz. St. L.J. 429 (2001) (criticizing present structure of professional regulation and proposing an alternative system narrowly tailored to defensible rationales).
148. John Gibeaut, Cash Boughs: Since the ABA's Rejection of Multidisciplinary Practices, More Law Firms are Branching Out into Law-Related Businesses, A.B.A. J., Feb. 2001, at 50; see also John S. Dzienkowski & Robert J. Peroni, Multidisciplinary Practice and the American Legal Profession: A Market Approach to Regulating the Delivery of Legal Services in the Twenty-First Century, 69 Fordham L. Rev. 83 (2000). The Appellate Divisions of the New York Supreme Court recently adopted rules allowing lawyers to participate in business affiliations with other professionals who provide nonlegal services. New York Modifies Rules to Authorize Multidisciplinary Business Affiliations, 17 Law. Manual on Prof'l Conduct (ABA/BNA) No. 16, at 464 (Aug. 1, 2001). A task force of the California Bar has recommended that lawyers be allowed to participate in fully integrated MDPs. California Bar Task Force Floats Plan for Amending Ethics Rules to Allow MDPs, 17 Law. Manual on Prof'l Conduct (ABA/BNA) No. 15, at 431 (July 18, 2001).
149. John Gibeaut, Cash Boughs: Since the ABA's Rejection of Multidisciplinary Practices, More Law Firms are Branching Out into Law-Related Businesses, A.B.A. J., Feb. 2001, at 50; see also John S. Dzienkowski & Robert J. Peroni, Multidisciplinary Practice and the American Legal Profession: A Market Approach to Regulating the Delivery of Legal Services in the Twenty-First Century, 69 Fordham L. Rev. 83 (2000). The Appellate Divisions of the New York Supreme Court recently adopted rules allowing lawyers to participate in business affiliations with other professionals who provide nonlegal services. New York Modifies Rules to Authorize Multidisciplinary Business Affiliations, 17 Law. Manual on Prof'l Conduct (ABA/BNA) No. 16, at 464 (Aug. 1, 2001). A task force of the California Bar has recommended that lawyers be allowed to participate in fully integrated MDPs. California Bar Task Force Floats Plan for Amending Ethics Rules to Allow MDPs, 17 Law. Manual on Prof'l Conduct (ABA/BNA) No. 15, at 431 (July 18, 2001).
150. John Gibeaut, Cash Boughs: Since the ABA's Rejection of Multidisciplinary Practices, More Law Firms are Branching Out into Law-Related Businesses, A.B.A. J., Feb. 2001, at 50; see also John S. Dzienkowski & Robert J. Peroni, Multidisciplinary Practice and the American Legal Profession: A Market Approach to Regulating the Delivery of Legal Services in the Twenty-First Century, 69 Fordham L. Rev. 83 (2000). The Appellate Divisions of the New York Supreme Court recently adopted rules allowing lawyers to participate in business affiliations with other professionals who provide nonlegal services. New York Modifies Rules to Authorize Multidisciplinary Business Affiliations, 17 Law. Manual on Prof'l Conduct (ABA/BNA) No. 16, at 464 (Aug. 1, 2001). A task force of the California Bar has recommended that lawyers be allowed to participate in fully integrated MDPs. California Bar Task Force Floats Plan for Amending Ethics Rules to Allow MDPs, 17 Law. Manual on Prof'l Conduct (ABA/BNA) No. 15, at 431 (July 18, 2001).
151. John Gibeaut, Cash Boughs: Since the ABA's Rejection of Multidisciplinary Practices, More Law Firms are Branching Out into Law-Related Businesses, A.B.A. J., Feb. 2001, at 50; see also John S. Dzienkowski & Robert J. Peroni, Multidisciplinary Practice and the American Legal Profession: A Market Approach to Regulating the Delivery of Legal Services in the Twenty-First Century, 69 Fordham L. Rev. 83 (2000). The Appellate Divisions of the New York Supreme Court recently adopted rules allowing lawyers to participate in business affiliations with other professionals who provide nonlegal services. New York Modifies Rules to Authorize Multidisciplinary Business Affiliations, 17 Law. Manual on Prof'l Conduct (ABA/BNA) No. 16, at 464 (Aug. 1, 2001). A task force of the California Bar has recommended that lawyers be allowed to participate in fully integrated MDPs. California Bar Task Force Floats Plan for Amending Ethics Rules to Allow MDPs, 17 Law. Manual on Prof'l Conduct (ABA/BNA) No. 15, at 431 (July 18, 2001).
152. Michael Braunstein, Structural Change and Inter-Professional Competitive Advantage: An Example Drawn from Residential Real Estate Conveyancing, 62 Mo. L. Rev. 241 (1997).