Last Saturday at the American Bar Association Annual meeting in San Francisco, the ABA Commission on Future of Legal Services revealed its final report. There were about 125 people in attendance. Past and future ABA presidents spoke: William Hubbard who established the Commission two years ago, Paulette Brown and Linda Klein. The Chair, Vice-Chair and reporters of the Commission presented the Report and took questions.
Overview
The easily-digestible 100-page Report is divided into two parts: the Commission’s findings and its recommendations. Both sections are heavily supported by endnotes with hyperlinks.
It struck me that this format may have been adopted to bring risk-averse, precedent-following lawyers to the conclusion that change is actually necessary and, quite frankly, already underway. And talk about heavy precedent: the Report cites Roscoe Pound in 1906 and Chief Justice Warren Burger 70 years later calling on the profession to address the public’s dissatisfaction with the legal system. The Introduction sets the tone by saying the legal profession is at an inflection point: “Without significant change, the profession cannot ensure that the justice system serves everyone and that the rule of law is preserved.”
There is a concise Executive Summary that summarizes both findings and recommendations. I heartily agree with the following statement in the Executive Summary:
The Commission recognizes that portions of this Report may be viewed as controversial by some or not sufficiently bold by others, but the Commission believes that significant change is needed to serve the public’s legal needs in the 21st century.
Appendixes at the back explain the mission of the Commission, the methodology of how it went about its work, and references to its various issues papers and other work product.
Findings Provide A Clear Call to Action
The Findings section of the Report provides a call to action and context for the later recommendations.
Finding A: Despite our efforts to expand access to justice, the public has significant unmet legal needs.
- Most people living in poverty, and the majority of moderate-income individuals, don’t receive the help they need.
- The public often doesn’t obtain effective assistance with legal problems, either because of insufficient financial resources or lack of knowledge about when legal problems exist.
- The vast number of unrepresented parties in court adversely affects all litigants.
- Many lawyers, particularly newer law graduates are unemployed or underemployed.
- The traditional law practice business model constrains innovations.
- The legal profession’s resistance to change hinders innovations.
- Limited data has impeded efforts to identify and assess the most effective innovations in legal services delivery.
Finding B: Advancements in technology and other innovations are already changing how legal services can be accessed and delivered.
This finding is supported by a litany of examples of innovation adopted across the country. The innovators are divided by traditional (courts, bar associations, law schools and lawyers in private and corporate practice) and new providers. A wide range of innovations are mentioned as being used by traditional providers including alternative billing, document assembly, artificial intelligence, project management and process improvement, and unbundling. There is no quantification, however, as to the amount of use any innovation.
Finding C: Public trust and confidence in obtaining justice and in accessing legal services is compromised by bias, discrimination, complexity and lack of resources.
Finding C is extremely broad and caught me by surprise. As explained at the program, the Commission listened and viewed the evidence through the lens of consumers of legal services. The Commissioners believed based on the evidence they heard that the following findings are relevant to the future delivery of legal services in the United States:
- The legal profession does not yet reflect the diversity of the public, especially in positions of leadership and power.
- Bias-both unconscious and conscious–impedes fairness and justice in the legal system.
- The complexity of the justice system and the public’s lack of understanding about how it functions undermines trust and confidence.
- The criminal justice system is overwhelmed by mass incarceration and over-criminalization coupled with inadequate resources.
- Federal and state governments have not funded or supported the court system adequately, putting the rule of law at risk.
Recommendations Nudge Toward The Future
The Recommendations section of the Report attempts to engage courts, bar associations and others to take action to address the dire factual findings.
Recommendation 1: The legal profession should support the goal of providing some form of effective assistance for essential civil needs to all persons otherwise unable to afford a lawyer.
Noting that we have not yet achieved justice for all, the Report recommends we re-commit to other resolutions already promulgated to achieve this elusive goal. The Report says we should follow the 2015 resolution by the Conference of Chief Justices and Conference of State Court Administrators to strive for 100 % access to effective assistance for essential civil legal needs. Other suggestions, based on earlier ABA reports, include: provide legal representation as a matter of right where basic human needs are at stake; provide adequate compensation and funding to those who deliver legal services to ensure effective and competent representation; and have courts adopt standardized, uniform, plain-language forms for proceedings with a significant number of self-represented litigants.
Recommendation 2: Courts should consider regulatory innovations in the area of legal services delivery.
There were four sub-sections to this recommendation:
- State supreme courts should consider adopting the ABA Model Regulatory Objectives for the Provision of Legal Services adopted by the ABA House of Delegates in February 2016.
- Courts should examine and consider adopting rules and procedures for judicially authorized legal service providers. The Report goes on to cite examples of such legal service providers (LSPs) operating in certain states (courthouse navigators and facilitators in some states, document preparers in others and limited license legal technicians (LLLTs) in Washington.
- Courts should explore the benefits and risks to the public of services being provided by new entities via Internet platforms and new technologies. The Commission noted that regulation may be necessary to protect the public. But it cautioned against reflexive regulation, noting that “unnecessary regulation of new kinds of LSP entities could chill additional innovation…”
- Similarly, continued exploration of alternative business structures (ABS) is recommended.
Recommendation 3: All members of the legal profession should keep abreast of relevant technologies.
This has been codified in Comment 8 to ABA Model Rule 1.1 as a basic requirement of competence, so hardly should be controversial. To date, 23 jurisdictions have adopted comment 8, including Illinois.
Recommendation 4: Individuals should have regular legal checkups, similar to medical checkups, and the ABA should create guidelines for lawyers, bar associations, and others who develop and administer such checkups.
This makes good sense to me. Think about the number of legal issues that people have in their daily lives including health, housing, employment, and education. Yet I wonder whether in a room full of people, how many would raise their hand if you asked them to self-identify that they have a lawyer they can call on for their legal needs. Nearly all would raise their hands, however, in response to the same question about whether they had a doctor.
Recommendation 5: Courts should be accessible, user-centric, and welcoming to all litigants, while ensuring fairness, impartiality and due process.
This recommendation also has many subparts. Courts were urged to expand physical access and to consider whether remote participation of litigants, witnesses, lawyers, experts and jurors through technology was feasible. Courts were also urged to consider streamlining litigation processes through uniform, plain-language forms and adding multilingual written materials and translators and interpreters to accommodate the 325,000 judicial proceedings in 119 different languages requiring an interpreter each year. Finally, courts were asked to explore online dispute resolution systems to relieve the overburdened judicial system and preserve the constitutional role of the courts in dispute resolution.
Recommendation 6: The ABA should establish a Center for Innovation.
This is a recognition that although the Commission is disbanding, its work must be ongoing. The purpose of the Center “is to position the ABA as a leader and architect of the profession’s efforts to increase access to legal services and improve the delivery of, and access to, those services to the public through innovative programs and initiatives.” The Center would do its work through providing resources and materials, serving as a clearinghouse of innovation efforts, and operating a program of innovation fellowships to work with a range of other professionals, including technologists, entrepreneurs, and design professionals to create new delivery models.
It was reported at the program Saturday that the ABA Board of Governors approved the Center on August 5 and that the Vice-Chair of the Commission, Dean Andrew Perlman of Suffolk University Law School was appointed the Chair of the Governing Council for the new Center.
Recommendation 7: The legal profession should partner with other disciplines and the public for insights about innovating the delivery of legal services.
This recommendation exhorts lawyers to get out of their silos and recognize that although we may be smart, we don’t know everything. It notes that the most important innovations are created with the assistance of those outside the system and that increased collaboration with other disciplines can help improve access to legal services.
Recommendation 8: The legal profession should adopt methods, policies, standards, and practices to best advance diversity and inclusion.
Admitting that the legal profession does not reflect the diversity of society, the Report states that the legal profession should ensure that the justice system operates free of bias. The Report calls for more training in unconscious bias and diversity sensitivity training.
Recommendation 9: The criminal justice system should be reformed.
A sweeping recommendation that was not a central focus of the Commission’s work, this recommendation came out of the “profound and pervasive impact that the criminal justice system has on individuals, the rule of law, and the public’s perception of the administration of justice.” This recommendation endorses reforms to repeal mandatory minimum sentences, consider diversionary programs and develop graduated sanctions. In addition, the Commission recommended that courts adjust fines and fees to avoid a disproportionate impact on the poor, that courts not condition access to a judicial hearing on payment of fines and not incarcerate people who can’t pay fines or fees. The Report urges a new solution for overcrowded prisons, including de-criminalizing minor offenses and training and mentoring programs for re-entry into society. Many of these topics were addressed by ISBA President Vincent Cornelius at The Future Is Now conference in April.
Recommendation 10: Resources should be vastly expanded to support long-standing efforts that have proven successful in addressing the public’s unmet needs for legal services.
Stating the obvious, the Report stresses that legal aid and pro bono efforts must be expanded, fully funded, and better promoted. The ABA should continue to support the full funding of the civil legal aid societies and courts should adopt rules to encourage pro bono representation by lawyers such as CLE credit for service. Also, echoing something I say in speaking to lawyer groups, the public needs to understand there is a distinction between legal representation by a lawyer and services on line or by an unregulated legal services provider.
Recommendation 11: Outcomes derived from any established or new models for the delivery of legal services must be measured to evaluate effectiveness in fulfilling regulatory objectives.
This recommendation notes the fact that there is a dearth of empirical evidence about the effectiveness of various legal innovations around the country. (I can’t help but noting that there also is a lack of empirical data about the effectiveness of “traditional” legal services around the country—except for the fact that it doesn’t serve large swaths of society.) The Report urges law schools, bar foundations and research entities to collaborate to measure outcomes so that successful innovations are replicated.
Recommendation 12: The ABA and other bar associations should make the examination of the future of legal services part of their ongoing strategic long-range planning.
Any report on the future of legal services soon will become out of date. The Commission wisely urges bar associations to stay engaged on this topic. The need will only intensify.
Wishing For More
When I finished reading the report, I found myself wishing for more. I definitely fall into the camp who thinks the recommendations are not sufficiently bold. The work of the ABA Commission on the Future of Legal Services was to study legal services through the eyes of the public. The public’s view, reflected in the findings of fact section, makes me uncomfortable. We are failing to serve the public and justice. Perhaps all of us lawyers should be uncomfortable. The springboard for innovation is discomfort with the status quo.