1 See, e.g., Carr-Saunders, A. M. & Wilson, P. A., The Professions (Oxford: Oxford University Press, 1933); W. J. Goode, Community Within a Community: The Profession, 22 Am. Soc. Rev. (1951); Ernest Greenwood, Attributes of a Profession, 2 Soc. Work 45 (1957).Google Scholar

2 The term “self-regulation” as used here refers to the fact that the locus of control over the work of professionals is in the professions themselves rather than in external agencies. In large part “self-regulation” designates the formal mechanisms and processes by which the professions control the admission and behavior of their members. This is the intended reference in this paper. However, professional self-regulation has also come to refer to informal processes of peer control by colleagues and to the exercise of self-control by individual members of the professions such that they refrain from taking undue advantage of their power over less knowledgeable clients. Carlin demonstrates the operation of informal peer control in his study of unethical practices in the New York bar, and Bosk shows how surgeons exercise influence over their colleagues' professional conduct in a large teaching hospital. See Jerome E. Carlin, Lawyers’ Ethics: A Survey of the New York City Bar (New York: Russell Sage Foundation, 1966); Charles L. Bosk, Forgive and Remember: Managing Medical Failure (Chicago: University of Chicago Press, 1979). Parsons suggests that professionals develop a “collectivity orientation” that stresses their responsibility to their clients and to the public interest. Such an ethical orientation is supposedly developed through socialization processes in professional schools. See Talcott Parsons, The Professions and Social Structure, in Talcott Parsons, ed., Essays in Sociological Theory (New York: Free Press, 1954); Howard S. Becker et al., Boys in White (Chicago: University of Chicago Press, 1961).Google Scholar

3 Wilensky, Harold L., The Professionalism of Everyone? 70 Am. J. Soc. 137 (1964).Google Scholar

4 Talcott Parsons, The Professions and Social Structure, supra note 2, at 34.Google Scholar

5 As Freidson notes, the ability of an occupational group to regulate itself “presupposes a successful political organization which can gain the power to negotiate and establish favorable jurisdictions.” The Future of Professionalisation, in Margaret Stacey et al., eds., Health and the Division of Labor 23 (London: Croom Helm, 1977).Google Scholar

6 For two examples see George Martin, Causes and Conflicts: The Centennial History of the Association of the Bar of the City of New York 1870–1970 (Boston: Houghton Mifflin, 1970); Herman Kogan, The First Century: The Chicago Bar Association 1874–1974 (Chicago: Rand-McNally, 1974).Google Scholar

7 Goode, supra note 1, at 198.Google Scholar

8 One of the first grievance committees was that formed by the Association of the Bar of the City of New York in 1874. It remained almost totally inactive for five years until spurred into action by the New York Supreme Court. One hundred years later an examination of the performance of local and state bar associations by an American Bar Association commission found that in many jurisdictions the disciplinary committees were largely inoperative. See Martin, supra note 6, at 353; American Bar Association, Report of the Special Committee on Evaluation of Disciplinary Enforcement (June 1970) (hereinafter referred to as the Clark Report).Google Scholar

9 Martin, supra note 6, at 352–56, outlines the early history of the Grievance Committee of the Association of the Bar of the City of New York, including its successful assertion of authority over all lawyers practicing in New York City whether members of the association or not.Google Scholar

10 For evidence that the early bar associations, whether metropolitan, state, or national, were elite organizations, see Roscoe Pound, The Lawyer from Antiquity to Modern Times (St. Paul: West Publishing Co., 1953); Jerold S. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America (New York: Oxford University Press, 1976).Google Scholar

11 Jerome E. Carlin, Lawyers on Their Own (New Brunswick, N.J.: Rutgers University Press, 1962); Philip Schuchman, Ethics and Legal Ethics: The Propriety of the Canons as a Group Moral Code, 37 Geo. Wash. L. Rev. 244 (1968-69); Auerbach, supra note 10.Google Scholar

12 See Carlin, supra note 2, at 150.Google Scholar

13 Michael J. Powell, Developments in the Regulation of Lawyers: Competing Segments and Market, Client, and Government Controls, 64 Soc. Forces 281 (1985). See also Bernard, Barber, Control and Responsibility in the Powerful Professions, 93 Pol. Sci. Q. 599 (1978).Google Scholar

14 For discussion of the Michigan system see Richard F. Coyne & Charles V. Brock, Association of the Bar of the City of New York, Report on the Michigan Grievance System (Jan. 4, 1979). For apparent references to the Michigan example see Clark Report, supra note 8, at 2, 8.Google Scholar

15 American Bar Association, Standing Committee on Professional Discipline, Model Rules for Lawyer Discipline Enforcement (Oct. 1979).Google Scholar

16 By March 1983 the lawyer disciplinary system was run by the supreme court or by a court-appointed body in 33 out of a total of 54 jurisdictions (in New York State there are four departments of the appellate division of the supreme court, each of which has its own disciplinary system). Memorandum from the director, ABA Center for Professional Responsibility (Mar. 29, 1983). This does not mean that the bar associations play no formal part whatever in lawyer discipline in those states where a court agency has been established, as is the case in Michigan. In some states the bar associations retain indirect influence through the nomination of the members of the investigatory and adjudicatory committees of the disciplinary agency.Google Scholar

17 Joint statement by Milton H. Gray, president of the Chicago Bar Association, and Morton J. Barnard, president of the Illinois State Bar Association (July 2, 1971) (available in CBA files). See also report of meeting with the Illinois Supreme Court (Nov. 15, 1971) (available in CBA files). For after-the-fact comments, see Committees on Inquiry and Grievances, CBA, 1971–72, 1972–73 Annual Reports.Google Scholar

18 The ARDC was established by Illinois Supreme Court Rules 751–56 (Jan. 25, 1973).Google Scholar

19 Marie R. Haug, Deprofessionalization: An Alternate Hypothesis for the Future (Soc. Rev. Monograph No. 20, 1973); Robert Rothman, Deprofessionalization: The Case of Law in America, 11 Work & Occupations 183 (1984).Google Scholar

20 Powell, supra note 13.Google Scholar

21 Responsibility for the operation of lawyer discipline generally lay with the local and county bar associations, not with the ISBA. As the statewide organization of lawyers, however, the ISBA represented the local and county bar associations in the negotiations with the Illinois Supreme Court.Google Scholar

22 For a historical account of a state supreme court turning to a bar association for aid in disciplining lawyers in New York City, see Martin, supra note 6, at 353–55; Eric H. Steele & Raymond T. Nimmer, Lawyers, Clients, and Professional Regulation, 1976 A.B.F. Res. J. 921, note that “the primary operating responsibility for discipline lies in state or local bar organizations.”Id.Google Scholar

23 In 1975 the total number of lawyers in Cook County numbered some 18,000, of which some 12,000 were members of the CBA. John P. Heinz et al., Diversity, Representation, and Leadership in an Urban Bar, 1976 A.B.F. Res. J. 717. For an overview of the growth of the CBA, see Terence C. Halliday, Beyond Monopoly: Lawyers, State Crisis and Professional Empowerment (Chicago: University of Chicago Press, forthcoming).Google Scholar

24 Illinois Supreme Court Rules 751–52 defined the formal procedures. For a critical discussion of these procedures, see Chicago Council of Lawyers, Report on Disciplinary Procedures for Professional Misconduct (1972) (hereinafter referred to as CCL Report on Disciplinary Procedures).Google Scholar

25 See CCL Report on Disciplinary Procedures, supra note 24. The inefficiency and slowness of the disciplinary process was acknowledged by the CBA discipline committees themselves. Report of Special Committee on Procedures of Inquiry and Grievance Committees, CBA (July 1971).Google Scholar

26 Report of the Committee for Development of Law, CBA (1954).Google Scholar

27 Report of the Younger Members Committee, CBA (1964).Google Scholar

28 Committee on Inquiry, CBA, 1951, 1954, 1967, 1970 Annual Reports.Google Scholar

29 Clark Report, supra note 8, at 1.Google Scholar

30 Id. at 4.Google Scholar

31 Id. at 9.Google Scholar

32 James A. Velde, CBA president, press release (Dec. 21, 1970).Google Scholar

33 Frank Greenberg, CBA president, statement prepared for presentation to the Law Practice Committee of the Illinois House of Representatives (Jan. 12, 1970) (available in CBA files).Google Scholar

34 Report of the Special Committee on Ambulance Chasing, CBA (1970).Google Scholar

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37 CCL Report on Disciplinary Procedures, supra note 24.Google Scholar

38 Id. at 1.Google Scholar

39 Id.Google Scholar

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43 Telephone interview with Richard H. Senter, former chief counsel, Michigan State Bar Association (Nov. 4, 1985).Google Scholar

44 Indicative of the uncertainty and instability in the area of legal ethics at this time is the fact that in 1969 the ABA had just adopted, after lengthy discussion and debate, the Code of Professional Responsibility to replace the Canons of Ethics, which had stood since 1908. Although the ABA had approved the new code, it remained for each state supreme court to adopt it as the point of reference for its enforcement system. That was by no means an automatic process, and in some states, such as Illinois, disagreement over its content delayed the adoption of the Code of Professional Responsibility for several years.Google Scholar

45 CCL Report on Disciplinary Procedures, supra note 24, at 7.Google Scholar

46 Clark Report, supra note 8, at 2.Google Scholar

47 Regular comments on the poor image of lawyers were made by the presidents of the CBA in their column in the Chicago Bar Record.Google Scholar

48 Committee on Inquiry, CBA, 1962–63 Annual Report.Google Scholar

49 The secretary estimated that in the year 1969–70 he received about 2,000 complaints, of which 1,030 were passed on to the executive committee of inquiry. Report of Special Committee on Procedures of Inquiry and Grievance Committees, supra note 25, at 1.Google Scholar

50 As early as 1959 the inquiry committee noted in its annual report that “The lack of adequate investigative personnel has been and will continue to be a serious handicap to the effective prosecution of disbarment proceedings.” Committee on Inquiry, CBA, 1958–59 Annual Report.Google Scholar

51 Summary of Position Taken by the Board of Managers of the CBA in the Matter of an Annual License Fee for Lawyers (May 1965) (available in CBA files).Google Scholar

52 In recognition of the fact that the CBA had responsibility for disciplining ISBA members who practiced in Chicago, the ISBA began to underwrite the CBA's discipline expenditures to the extent of $45,000 in 1965. Treasurer, CBA, 1965–66 Annual Report.Google Scholar

53 Id.Google Scholar

54 Report on meeting with the Illinois Supreme Court (Nov. 15, 1971) (available in CBA files).Google Scholar

55 For a brief outline of the structures and procedures of the ARDC, see CCL Report on Investigation of the Operation of the Attorney Registration and Disciplinary Commission (Feb. 1978).Google Scholar

56 CCL Report on Disciplinary Procedures, supra note 24, at 1.Google Scholar

57 I11. Sup. Ct. Rule 752, Part B (Registration and Discipline of Attorneys). The discretion exercised by the ARDC is acknowledged by both the executive director of the CBA and the administrator of the ARDC. Interviews with John J. McBride, executive director (Jan. 23, 1976), and Carl H. Rolewick, administrator (Dec. 16, 1975).Google Scholar

58 The strong response of the Illinois Supreme Court to an apparent attempt by the Lake County Bar Association to intervene in the discipline process demonstrates this point. The chief justice makes it clear that bar leaders can no longer intervene: “Local bar associations should not become involved in any way in any complaint against an attorney.” Correspondence from Howard C. Ryan, chief justice, Illinois Supreme Court, to Richard H. Smith, member of the Waukegan bar (Dec. 1, 1982).Google Scholar

59 A former board member of the CBA complained that the administrator was “his own boss” and was responsible to no one. He felt the CBA had acted as an important moderating influence. Verbatim comments from elite interviews, Chicago Bar Project, American Bar Foundation (1975). For a description of the data collected by this study see Heinz et al., supra note 23, at 719–23. The attitude that grievance activities serve to protect the bar as much as prosecute unethical conduct is reflected in statements such as this of the committee on inquiry: “Paramount in the minds of the members of the Committee at all times has been the desire to protect lawyers against unfounded charges as well as a desire to protect the public and the bar against those who have conducted themselves improperly.” Committee on Inquiry, CBA, 1962–63 Annual Report.Google Scholar

60 Ten years after its creation, the ARDC's annual expenditures exceeded $1 million, and it sought an increase in lawyer registration fees. By this time, the ARDC employed seven full-time attorneys as well as investigators and support staff. ARDC, 1984 Annual Report.Google Scholar

61 See Committee on Inquiry, CBA, 1969–70 Annual Report; ARDC, 1975, 1980, 1984 Annual Reports.Google Scholar

62 Id.Google Scholar

63 Personal interview with Rolewick, supra note 57.Google Scholar

64 ARDC, 1979, 1983 Annual Reports.Google Scholar

65 Committee on Inquiry, CBA, 1969–70 Annual Reports; ARDC, 1975 Annual Report.Google Scholar

66 ARDC, 1975 Annual Report.Google Scholar

67 CCL Report on Investigation, supra note 54, at 5.Google Scholar

68 A major facilitator of the development of a national community of lawyers engaged in discipline enforcement has been the ABA's Center for Professional Responsibility, created as a result of the Clark Report. The National Organization of Bar Counsel has also grown in size and become more active in establishing disciplinary commissions with full-time legal staffs.Google Scholar

69 Personal interview with Rolewick, supra note 57.Google Scholar

70 Such comments were indicative of the feelings of Chicago attorneys who were unhappy with the establishment of the ARDC. Verbatim comments in interviews from general survey, Chicago Bar Project, supra note 59.Google Scholar

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72 See ARDC Annual Reports. Also CCL Report on Investigation, supra note 55, at 21.Google Scholar

73 In 1975 the administrator reported that ARDC was attempting to compile a handbook of cases and procedures that would result in some codification of procedures and establishment of precedent. Personal interview with Rolewick, supra note 57.Google Scholar

74 Memorandum from ABA Center for Professional Responsibility, supra note 16.Google Scholar

75 The executive director of the CBA stated that cost was the main factor in the CBA's relinquishment of discipline. He claimed that the whole process was a drain on the CBA's resources and observed that the administration of the CBA was happy to see it gone. Personal interview with McBride, supra note 57.Google Scholar

76 After studying bar discipline Marks and Cathcart observed that “when we consider the disciplinary process as a whole we are looking at the ways that the legal profession gives the appearance of self-regulation without in fact engaging in the act of self-regulation.” F. Raymond Marks & Darleen Cathcart, Discipline Within the Legal Profession: Is It Self-Regulation? 1974 U. I11. L.F. 193, 228.Google Scholar

77 Martin, supra note 6, at 353.Google Scholar

78 All published studies of lawyer discipline systems report that a vast majority of complaints are dismissed and few lawyers disciplined. See Carlin, supra note 2; S. Arthurs, Discipline in the Legal Profession in Ontario, 7 Osgoode Hall L.J. 261 (1970).Google Scholar

79 For a provocative discussion of the bar's concern with legitimacy and the part codes of ethics and self-regulation play in that concern, see Richard, Abel, Why Does the ABA Promulgate Ethical Rules? 59 Tex. L. Rev. 639–88 (1981).Google Scholar

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82 By 1969, prominent personal injury attorneys, such as Phillip Corboy, had been elected to leadership positions in the CBA so that throughout the 1970s, the negligence bar was well represented in the president's office. Terence C. Halliday & Charles L. Cappell, Indicators of Democracy in Professional Associations: Elite Recruitment, Turnover, and Decision Making in a Metropolitan Bar Association, 1979 A.B.F. Res. J. 697.Google Scholar

83 Carr-Saunders & Wilson, supra note 1; Greenwood, supra note 1.Google Scholar

84 Clark Report, supra note 8, at 8–9.Google Scholar

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86 Id. at 925–33.Google Scholar

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88 See, e.g., Magali S. Larson, The Rise of Professionalism (Berkeley: University of California Press, 1977); Jeffrey L. Berlant, Profession and Monopoly (Berkeley: University of California Press, 1975).Google Scholar

89 Terence C. Halliday, Professions and the Monopoly Motif (unpublished paper, 1982); id., supra note 23.Google Scholar

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