Thursday, August 11, 2016

ABA Commission on Future of Legal Services issues its final report; I am not particularly impressed -- UPDATED

Back in 2014, the American Bar Association created a Commission on the Future of Legal Services and charged it with the task of studying how legal services are delivered in other countries and of recommending innovations that would improve the delivery of, and the public’s access to, legal services in the United States.

At the time, this seemed like a great way to organize what could otherwise have become an ever expanding and hard to manage debate, but now that the Commission's final report is out, it is being criticized for a number of reasons.   

The Commission presented its final report at the 2016 ABA Annual Meeting and it has already been criticized for avoiding the hardest issues.  See here, here and here, for example. The commission stated that courts should be open to innovations in the delivery of legal services and called on them to adopt the ABA Model Regulatory Objectives for the Provision of Legal Services but fell short of taking a specific stance on the more controversial topics.  It merely encouraged states to “explore how legal services are delivered by entities that employ new technologies and internet-based platforms and then assess the benefits and risks to the public.”  In other words, after two years of work, the Commission encouraged the states to consider what the Commission itself considered during those two years.  And, as for the notion of alternative business structures, the Commission’s report’s language is even more tentative.  It merely states that “[c]ontinued exploration of alternative business structures (ABS) will be useful.”

Thus, while the ABA’s Commission took steps to open the door to innovative approaches to the delivery of legal services, even considering allowing alternative business structures and non-lawyer service providers, the ABA itself continues to avoid embracing some of those approaches.  As expressed by one commentator, even though the report documents the successful use of non lawyer legal services providers (LSPs) in a number of jurisdictions,
rather than explicitly endorse wider use of LSPs, the commission passes the buck, calling on courts to “examine, and if they deem appropriate and beneficial to providing greater access to competent legal services, adopt rules and procedures for judicially authorized and regulated legal services providers.”

With regard to companies that use technology to deliver legal services, the commission finds that “in many instances, these innovative LSP entities have positively contributed to the accessibility of legal services.” Here again, however, the commission takes the route of recommending further study, calling on states to “explore how legal services are delivered by entities that employ new technologies and internet-based platforms and then assess the benefits and risks to the public associated with those services.”

. . . .

. . . No one can deny that the future of legal services hinges on how we, as a profession, answer critical questions about evolving business models, evolving service-delivery models, and emerging technologies. Yet on these questions, the commission falls short of taking bold and decisive stands, instead recommending further study and consideration.

Moreover, as a result of the Commission’s report, the ABA has done what it does all too often.  It created yet another Commission – or, in this case, a Center – to be chaired by one of the co-chairs of the ABA Commission on the Future of Legal Services, to continue studying the issues.  This new Center, to be known as The Center for Innovation, will be responsible for “driving innovation in the justice system and the legal profession” by, among other possibilities, serving as a resource for ABA members, maintaining an inventory of the ABA’s innovation efforts as well as the efforts of the domestic and international legal services community, and operating a program of “innovative fellowships” to work with other professionals, such as technologists, entrepreneurs and design professionals, to create models that improve the justice system.

How these goals can be achieved, of course, is the real challenge that lies ahead.

In addition to recommending the creation of the Innovation Center, the Report lists 11 specific recommendations, most of which are general and things that no one would disagree with. For example:

1. The legal profession should support the goal of providing some form of effective assistance for essential civil legal needs to all persons otherwise unable to afford a lawyer.

2.  The legal profession should adopt methods, policies, standards, and practices to best advance diversity and inclusion.

3.  The criminal justice system should be reformed.

4.  Resources should be vastly expanded to support long-standing efforts that have proven successful in addressing the public’s unmet needs for legal services.

5.  Outcomes derived from any established or new models for the delivery of legal services must be measured to evaluate effectiveness in fulfilling regulatory objectives.

6.  The ABA and other bar associations should make the examination of the future of legal services part of their ongoing strategic long-range planning.

7.  Courts should be accessible, user-centric, and welcoming to all litigants, while ensuring fairness, impartiality, and due process.

8. All members of the legal profession should keep abreast of relevant technologies.
[Note that idea has been incorporated into the Model Rules and into the rules of most states by now.]

Then there is this interesting recommendation:  

9.  Individuals should have regular legal checkups, and the ABA should create guidelines for lawyers, bar associations, and others who develop and administer such checkups.

I am not sure I understand this one.  The report reminds us that most Americans don't have access to legal representation, but at the same time it recommends that all Americans go get a legal check up regularly.

Finally, there are the recommendations that are going to be the center of criticism of the Commission:

10.  The legal profession should partner with other disciplines and the public for insights about innovating the delivery of legal services.

I am not sure how to interpret this recommendation.  Is the Commission endorsing eliminating the ban on allowing lawyers to form partnerships with non-lawyers or something less controversial?  I am not sure.  My guess is that working on this recommendation will be part of the new Center's goal.

11.  Courts should consider regulatory innovations in the area of legal services delivery.

OK, but, as stated above, this is kind of an empty recommendation because all the Commission does is recommend that state courts consider that which the Commission has been considering for the last two years.  I would have preferred to see something more concrete.

Also, it is interesting that rather than recommend the use of innovative ways to provide access to legal services, the Commission is recommending the adoption of innovative regulation to manage the delivery of legal services.

UPDATE (8-23-16):   A few days after I posted this, I posted a link to an interview with one of the founders of LegalZoom with more criticism of the Commission's report.  The same website that published that interview, now has a column by the co-chairs of the Commission in which they respond to the criticism.  You can read it here.  They reply to some direct criticism of the report and defend its conclusions and recommendations, but it is not clear to me they explain why the language of the recommendations is tentative.  Why, instead of recommending states to "consider" something, not recommend that they "adopt" a particular view or approach.  I don't have a problem with the recommendations; I guess I just expected that they would be more definitive or concrete.

UPDATE (8-24-16):  Another member of the Commission has posted a reply to some of the criticism here.

UPDATE (10-23-16):  The Legal Talk Network has posted a podcast discussing the Commission's report.

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