On Monday, the ABA House of Delegates overwhelmingly voted to adopt Resolution 115 encouraging the exploration of regulatory innovation to expand civil legal services. But many say the last-minute addition of a clause stating the resolution wouldn’t alter the ABA Model Rules of Professional Conduct diminishes its impact.
Background on Resolution 115
Resolution 115 was proposed in response to the growing access to justice crisis in which more than 80% of low and moderate-income Americans are unable to obtain effective civil legal assistance.
The original resolution and supporting report, which was signed by Dan Rodriguez, a professor at Northwestern Pritzker School of Law and former chair of the ABA Center for Innovation, calls for the ABA to take a leadership position in fostering “new approaches” to the practice of law to improve the accessibility, affordability, and quality of civil legal services in the U.S.
The resolution points to efforts by regulators and bar associations in several states, including Arizona, California, New Mexico, Utah, Illinois, and others, that are exploring lawyer re-regulation in response to the market failure in consumer legal services. Regulatory changes being explored generally fall into three areas:
- the authorization and regulation of new categories of legal service providers,
- the consideration of alternative business structures,
- and the reexamination of provisions related to the unauthorized practice of law.
Resolution 115, however, faced significant opposition by some state bar leaders who said it could impact lawyer independence by leading to outside investment of law firms and nonlawyers practicing law.
“Outside ownership of legal providers would present a minefield for the profession,” said a Jan. 30 letter to the House of Delegates signed by Stephen Younger, former president of the New York State Bar Association, and other state bar leaders.
A Diluted Resolution
After what the ABA described as “intense debate,” proponents amended the resolution to soften its opposition and garner support at the ABA 2020 Midyear Meeting.
Specifically, they added a clause stating that “nothing in this Resolution should be construed as recommending any changes to any of the ABA Model Rules of Professional Conduct, including Rule 5.4, as they relate to nonlawyer ownership of law firms, the unauthorized practice of law, or any other subject.”
The ABA Center for Innovation also removed several passages from the report, eliminating language related to nonlawyer partnerships and non-licensed attorneys, according to the ABA.
While supporters of Resolution 115 in its original form say passage is a step in the right direction, many believe the revisions send mixed messages on the ABA’s support of regulatory innovation.
After the vote on Monday, Rodriguez called on state bars to “pick up the cudgel and experiment boldly” to close the access to justice gap. He stepped down as chair of the ABA Center for Innovation the following day. Don Bivens, a partner in the Phoenix firm Snell & Wilmer, assumed the chairmanship.
Conference of Chief Justices Takes a Stance
During its 2020 Midyear Meeting, the Conference of Chief Justices (CCJ) adopted Resolution 2, urging members to consider regulatory innovations to improve the delivery of legal services while protecting the public.
The resolution points to data gathered from statewide regulatory sandboxes as a “measured approach to identify and analyze the best solutions to meeting the public’s growing legal needs.”
While the task of regulating the legal profession typically falls to state bars or bar associations, state supreme courts are ultimately responsible, says Zack DeMeola, manager at the Institute for the Advancement of the American Legal System.
DeMeola will speak on the implications of the re-regulation of legal services at the Commission on Professionalism’s The Future Is Now: Legal Services conference in April. Register here.
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