85 Notre Dame L. Rev. 2227 (2017)
Monitors oversee remediation efforts at dozens, if not hundreds, of institutions that are guilty of misconduct. The remediation efforts that the monitors of today engage in are, in many instances, quite similar to activities that were once subject to formal court oversight. But as the importance and power of monitors has increased, the court’s oversight of monitors and the agreements that most often result in monitorships has, at best, been severely diminished and, at worst, vanished altogether.
The lack of regulation governing monitors is well documented; yet, the academic literature on monitorships to date has largely taken the state of monitorship regulation as a given and failed to explain adequately why monitors, who often are technical members of regulated professions, are not subject to professional regulation. This Article argues that one reason for the lack of regulation governing monitorships is the resistance of the bar to regulate quasi-legal positions undertaken by lawyers. Instead, the primary restraint on a monitor’s behavior is the monitor’s own interest in her reputation. This has resulted in monitoring roles undertaken by lawyers who are acting in a manner that is not subject to formal professional standards and by non-lawyers who have no mechanisms of constraint on their behavior. Consequently, several areas of concern for monitorships need careful study and attention in an attempt to achieve some semblance of legitimacy and standards for monitors and monitorships. Specifically, more research is needed to determine appropriate norms regarding (i) a monitor’s disclosure of information, (ii) how to facilitate monitor independence, and (iii) potential methods for utilizing personal responsibility as a mechanism of sanctioning a monitor for inappropriate conduct.
85 Notre Dame L. Rev. 2227 (2017).
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