Reasoned Decision-Making for Ethics Regulation

By John S. Dzienkowski & John M. Golden*

Many lawyers and scholars have criticized the ethics rules developed by the organized legal profession to regulate the practice of law. Complaints about processes for generating new ethics rules and ethics opinions interpreting ethics rules commonly reflect concerns about failures to engage in reasoned decision-making. Rationales for the proposed rules or the opinions proffered by bar associations, courts, or agencies are often incomplete or inadequately supported, and one must imagine that the quality of resulting rules or their interpretations often suffers. We argue that administrative law provides a model for how courts can address such concerns—a model that courts, both federal and state, already follow in demanding and encouraging reasoned decision-making by administrative agencies. This Article examines two principal administrative law approaches that courts should adopt. First, even in areas where courts are manifestly inexpert relative to administrative agencies, they have insisted on giving agency rules a “hard look” for confirmation that the agency properly justified the rules at the time of issuance, that the agency issued the rules through a process that gave interested parties a meaningful opportunity to comment and make suggestions, and that the agency properly considered such inputs as well as the whole of the evidence before it. Second, courts have often accorded weight to agency opinions on questions such as statutory interpretation, with the weight accorded dependent on the nature of the agency’s process in generating such an interpretation. In the ethics context, courts can act similarly to promote reasoned decision-making by (1) giving
an analog of “hard look” review to rules proffered by bar associations before adopting them and (2) giving bar associations’ ethics opinions only a degree of weight that they merit through high quality process and on-therecord reasoning. By adopting these two approaches to considering the adoption and interpretation of ethics rules, courts can help bring about significant improvements to processes for drafting, adopting, and interpreting ethics rules.