Illinois Kicks Off Era of Proactive Lawyer Regulation

By Joan C. Rogers

A unique new Illinois rule will compel uninsured lawyers in private practice to go through a self-assessment process aimed at helping them avoid disciplinary problems and malpractice claims.

The free online self-assessment will be a positive, dynamic experience that helps lawyers “build a better machine” for their practice, James J. Grogan told Bloomberg BNA. He’s deputy administrator and chief counsel for the Illinois Supreme Court’s Attorney Registration & Disciplinary Commission, or ARDC.

The self-assessment mandate was adopted Jan. 25 and is set out in Illinois Supreme Court Rule 752(e). It makes Illinois the first state in the nation to adopt “proactive management based regulation” for the legal profession, the Illinois Supreme Court said in a statement announcing the new rule.

Proactive management based regulation, or PMBR, aims to help lawyers practice ethically and soundly in the first place, rather than reactively imposing discipline after lawyers make mistakes.

The concept of PMBR isn’t new, but interest in the idea is burgeoning among lawyer regulators in the United States due to developments in other countries, including the U.K. and parts of Canada and Australia. See 32 Law. Man. Prof. Conduct 369, 6/15/16 .

Another state embracing the PMBR movement is Colorado. It has already adopted a set of regulatory objectives for its attorney regulation system, and a committee is developing a voluntary self-assessment tool to roll out later this year, James C. Coyle told Bloomberg BNA. Coyle heads the Colorado Supreme Court Office of Attorney Regulation Counsel.

Start With Who’s Most at Risk

Grogan told Bloomberg BNA that the ARDC proposed self-assessment for uninsured lawyers after two or three years of studying new ways to better regulate the legal profession.

The ARDC has been watching what’s happening internationally in lawyer regulation and learning from discussions with other regulators, Grogan said. The commission considered a variety of approaches but chose to focus first on lawyers who are most at risk, he said.

Grogan noted that the process of purchasing insurance forces lawyers to think about their protocols. The ARDC focused its new regulatory efforts on lawyers who don’t go through that process, because those are the lawyers most at risk, he said.

The ARDC pitched the self-assessment idea to the Illinois Supreme Court, culminating in the new rule, Grogan said.

‘Positive Learning Experience.’

The rule describes the self-assessment as “an interactive online educational program” about professional responsibility requirements for operating a law firm. The self-assessment equips the lawyer with resources to fix any issues that show up in the assessment, according to the rule.

The rule requires lawyers who don’t get insurance to take a free four-hour CLE that has assessment components, Grogan said. Other lawyers can choose to do the self-assessment if they want to, he said.

Lawyers will be able to do the assessment in increments, and it will be a “positive learning experience,” Grogan said. Everything will be confidential, and nothing will be discoverable, he said.

The self-assessment mandate doesn’t kick in right away.

During the 2018 registration process, lawyers will have to say whether they have insurance, Grogan said. They can register if they don’t have insurance, but then they’ll need to go through the self-assessment the following year, he said.

Lawyers who don’t get insurance will have to do the self-assessment every two years. ARDC will periodically revamp the self-assessment to cover new ground and provide new resources, Grogan said.

Self-Assessment in Colorado

Colorado’s initiative to promote self-assessment differs somewhat from the approach in Illinois.

The Colorado Supreme Court’s subcommittee on PMBR is developing a voluntary self-assessment tool, Coyle told Bloomberg BNA.

Coyle said that 10 working groups are developing components on particular subjects, and they have until mid-February to finish their components. The goal is to do beta testing to find out if the self-assessment is useful and how it can be improved, and then roll out a live program in September, Coyle said.

The subcommittee previously planned for the assessment to require an hour and 40 minutes, but it’s now thinking the process should only be one hour. Lawyers will be able to take the assessment online, get results indicating what they can work on, and print out resources such as sample checklists, intake forms, and fee agreements, Coyle said.

Coyle said the subcommittee is exploring whether to seek a statutory privilege for the assessment. It’s also considering a related certification that might help lawyers get less costly insurance, he said.

The assessment will be a “vibrant resource” packaged so that lawyers will want to go through the process, Coyle said.

More on PMBR in Colorado

Colorado launched the PMBR subcommittee after attorney regulators convened at the 41st ABA National Conference of Professional Responsibility in May 2015 to discuss ideas for transforming attorney regulation.

Colorado’s PMBR subcommittee first worked on developing regulatory objectives designed to promote the public interest. This project came to fruition in April 2016, when the state supreme court adopted a new preamble to its regulatory rules governing the practice of law.

The preamble sets forth the court’s objectives in regulating the practice of law, and expresses its interest in proactive programs that improve lawyer competence and client service, Coyle said.

Colorado’s new preamble fits in with a larger trend. In February 2016 the ABA’s policy-making House of Delegates adopted a set of Model Regulatory Objectives, and urged states to consider them in assessing the existing regulatory framework and developing regulations for nontraditional legal service providers. See 32 Law. Man. Prof. Conduct 114, 2/24/16 .

The U.K. and some other countries have also enacted regulatory objectives in recent years. See 31 Law. Man. Prof. Conduct 623, 10/21/15 .

The self-assessment tool under development in Colorado and the state’s new regulatory objectives are only part of the subcommittee’s efforts to implement PMBR.

The Colorado Supreme Court’s website includes an “ Innovations” segment that describes the PMBR subcommittee and provides a link to information about PMBR in Colorado, the U.S., and other countries.

The Colorado PMBR materials include minutes of the subcommittee meetings, a PMBR roadmap for Colorado, 10 PMBR principles under study by working groups, and a Colorado self-audit checklist.

National Wellness Task Force

One of the working groups in Colorado’s PMBR subcommittee is focusing on lawyer wellness. An important aspect of PMBR involves helping law firms have policies and procedures that steer lawyers toward a better balance in their lives, Coyle said.

Coyle and Bree Buchanan, director of the Texas Lawyers’ Assistance Program, are co-chairing a new national task force on lawyer wellness.

The ABA Commission on Lawyer Assistance Programs (CoLAP) launched the task force in 2016 after a groundbreaking study by CoLAP and the Hazelden Betty Ford Foundation revealed widespread levels of substance use, depression and anxiety among U.S. lawyers.

Coyle said the wellness task force includes representatives from a wide range of groups, including APRL, NOBC, CoLAP and other ABA groups, the Conference of Chief Justices, and the National Conference of Bar Examiners, along with the co-authors of the ABA/Hazelden Betty Ford study and others.

The task force hopes to complete initial reports done by mid-March, Coyle said.

To contact the reporter on this story: Joan C. Rogers in Washington at jrogers@bna.com

To contact the editor responsible for this story: S. Ethan Bowers at sbowers@bna.com

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