ABA Center for Innovation drafts resolution and report encouraging U.S. jurisdictions to consider innovative approaches to the access to justice crisis

As we near the end of the year and start thinking of "top ten" lists, I think it is fair to say that the top three topics of debate in Professional Responsibility this year were (3) Model Rule 8.4(g), (2) the constitutionality of mandatory bar membership and (1) regulatory changes to allow non-lawyers to participate in the provision of legal services. 

The issue of regulatory changes is now back in the news because the ABA’s Center for Innovation and four standing committees recently published a report and a draft resolution seeking to advance the discussion of proposals that would open the provision of legal services to non-lawyers.  They will ask the ABA House of Delegates to vote on the resolution at the ABA's annual meeting in February.

You can download the resolution and the 11 page long report here. 

In a nutshell, the report is based on the proposition that “traditional solutions” (such as increased funding for civil legal aid, more pro bono work, and the creation of the equivalent of a public defenders system for civil cases) have resulted in some modest success, but they have not come close to fixing the problem of lack of adequate access to affordable legal services.

In addition, the report claims that the existing regulatory structure for the legal profession acts as a barrier to innovative alternatives like allowing involvement of other professionals, both within and outside of law firms.

For these reasons, the report encourages regulators and bar associations to follow the example of regulators in Arizona, California, New Mexico, Oregon, Utah, and Washington all of whom are working on proposals to adopt substantial regulatory innovations designed to encourage new models for competent and cost-effective delivery of legal services.

Having said all that, however, the report concludes that it is not clear what type of innovation will be best and, thus, does not recommend any specific amendments to the Model Rules of Professional Conduct.

Instead, the report (and the resolution based on it) call for U.S. jurisdictions to consider regulatory innovations that will develop new ways to deliver competent and cost-effective legal services.

More specifically, the report suggests that the efforts should concentrate in three broad areas of regulatory reform: (1) authorizing and regulating new categories of legal services providers, including non-lawyers; (2) modifying the rules that ban lawyers from partnering and sharing fees with non-lawyers; and, (3)  developing more permissive approaches to the notion of unauthorized practice of law to allow lawyers more freedom to practice across state borders.

Comment on Model Rule 8.4(g)

As you probably know, the recently adopted Model Rule 8.4(g) has generated a lot of debate.  Some states have rejected it, a handful have adopted it.  Most have retained similar rules they had adopted before the ABA adopted its Model Rule.  The controversy originates in the fact that the Model Rule may result in the imposition of discipline for protected speech outside the practice of law based on a standard of negligence.

Last month I reported that New Mexico recently adopted the text of the Model Rule.  I am writing again about this today because the blog Louisiana Legal Ethics just published a comment on the developments in New Mexico, and on the ABA Model Rule rule, in which the author concludes that Louisiana should not adopt the Model Rule or adopt a simpler anti-discrimination standard.  The comment is short, but worth reading.  You can find it here.

Prosecutor sued for alleged pattern of racial discrimination in jury selection

A Mississippi district attorney who prosecuted a black man six times for the same crime is facing a class action lawsuit that claims he has carried out a 27-year-old pattern of racial discrimination in the jury selection process by excluding black citizens from serving as jurors.

Courthouse news has the full story here.  The ABA Journal has more here.

Judge reprimanded for posting racist articles on Facebook

Several sources, including the Daily Memphian, are reporting that a Memphis Criminal Court Judge has received a reprimand from the Tennessee Board of Judicial Conduct for re posting an article and some images on social media that included language that depicted bias or prejudice.  The article was by a Holocaust denial and included derogatory language in reference to Muslims and immigrants.

The reprimand letter of the Tennessee Board of Judicial Conduct concludes that there was no proof that the judge had engaged in any actual bias, prejudice, or impartiality in his official capacity as a judge but that the posts were partisan in nature and a clear violation of the code of judicial conduct.  The Board also pointed out that dissemination on social media of articles and images that express racist or discriminatory ideas can easily be perceived by reasonable minds to undermine the impartiality of the judiciary or be perceived as prejudice of bias.

The text of the reprimand letter is here. The ABA Journal has more on the story here.

Judge orders attorney to violate a rule of professional conduct!

We all know that attorneys have an ethical obligation to provide competent and diligent representation to all their clients. We also know that being unable to do so is a proper argument to refuse a court appointed representation. 

Yet, this does not seem to apply to public defenders in Kansas City, where a judge has decided to order specifically ordering PDs to violate their ethical duties, and at least another one thinks the problem is that public defenders want time to meet their clients and prepare for their cases when they should just be entering guilty pleas.  Here is a copy of one such order. 

Aside from the fact that the state needs to do something about the PD system, the conduct of the judge who signed the order is outrageous and I hope he is reprimanded for it.  If there is a crisis in the system, it needs to be addressed but purposely ordering an attorney to be unethical, and to violate a defendant's constitutional rights in the process is reprehensible.

Critics of the way the criminal justice system is being run in Missouri have called it "assembly line justice," in which judges want to push defendants to plead guilty while giving defense lawyers little to no opportunity to meet their clients privately, or prepare for their cases.  The ABA Journal has the story here. 

How not to practice law: write "gibberish"

When an opinion ends by stating that "bad writing does not normally warrant sanctions, but we draw the line at gibberish" you know there is a big problem.  Full story here.

Law Practice Today Issue on Ethics

Law Practice Today, the magazine of the ABA Law Practice Division, just published its most recent issue and it is all dedicated to ethics issues.  You can access it here.

The main articles include:

When the Rules Stagnate Innovation, Change the Rules:  Is the profession of law its own worst enemy when it comes to innovation?

Maintaining Ethical Boundaries on the Gray Web of Marketing:  The ethics of marketing online are not always black and white.

Cybersecurity for Attorneys: Addressing the Legal and Ethical Duties: Neglecting your legal and ethical duties to protect client data carries profound risks.

Keep Your Mouth Shut!: Why lawyers must avoid revealing confidential client information in an age of open mouths.

Work-Life Synchronicity in the Legal Profession: How to get more joy out of all aspects of life–including work.

Measurement Matters in Diversity and Inclusion: The ABA Model Diversity Survey is an important tool for progress.

Illinois creates task force for regulatory reform

This fall I have discussed regulatory reform efforts in California (here, here, here, and here), Utah (here and here), Arizona (here) and Oregon (here).

Now we can add Illinois to the list.  Last month, the Chicago Bar Association and the Chicago Bar Foundation announced the creation of a task force that will work to identify regulatory reform recommendations to provide enhanced access and more affordable legal services to the public, while also working to make the practice of law more innovative and sustainable for lawyers.

You can get more information on the task force here and here.

Update on rules revisions

Faughan on Ethics has a short update on efforts to adopt Model Rule 8.4(g) around the country and on revisions on the rules regarding advertising and solicitation.

Podcast: Bill Henderson on the Institute for the Future of Law Practice

The Legal Talk Network's most recent Law Technology Now Podcast features Bill Henderson, professor at Indiana University Maurer School of Law, editor of Legal Evolution, and co-founder of the Institute for the Future of Law Practice.

In it Prof. Henderson shares highlights from his professional career and (starting at about the 15:30 minute mark) discusses the motivation behind the founding of IFLP which was created to facilitate programs and internships that help both law students and practicing lawyers develop skills that complement traditional legal education.

You can listen to the podcast by clicking on the play button below or by going here.

Georgia likely to become the next state to agree that "competence" should include competence related to "technology"

As I have written before, I am sure that by now you know that the Model Rules were amended a few years ago to include a comment about the use of "technology" in the practice of law.  Specifically, it says that it is part of the duty of competence to understand how to use, and the risks of using, "technology" in the practice of law. 

In response, 37 states have formally adopted some version of the ABA model rule's comment.  Georgia may be the next one. The Board of Governors of the State Bar recently voted to approve proposed changes to the state’s Rules of Professional Conduct that would adopt the duty of technology competence. The proposed changes will now be published for a 30-day comment period and then submitted for approval to the Georgia Supreme Court.

Law Sites has more information here.

Comment on programs that allow non lawyers to provide legal services

Long time readers of this blog know I have posted many stories on efforts around the country to provide more access to legal services, particularly by allowing non lawyers to provide some of those services.  A couple of states have implemented new rules to provide licensing to so called "Limited License Legal Technicians" (LLLTs) who are now allowed to provide legal services without the supervision of a lawyer in limited types of cases.  For some of my posts on this go to the section on innovation or the section on regulation.

I am writing about this today because the Institute for the Advancement of the American Legal System has posted a comment on the programs and proposals that allow (or would allow) non lawyers to provide legal services in order to improve access to legal services. 

Among other things, the author points out that although LLLT programs are good in theory, some argue they have proven to be a failure because they have not reached the people it was designed to reach, which has been a lingering argument against them since they were first proposed many years ago in Washington state.

Hopefully, however, we will have some actual data we can use to reach a conclusion on this argument.  The National Center for State Courts (NCSC) will soon begin a year long process to evaluate Washington state’s LLLT program. Although the program has been around for five years, it’s only been in the last few that NCSC has begun looking at its efficacy.  This upcoming comprehensive review aims to determine, among other things if LLLTs are adequately trained, and if they’re meeting the needs of their clients.

The most important thing it should try to determine is whether the program has resulted in making legal services more accessible and affordable. 

Update on the efforts by the Utah Bar to create new regulation that would allow non-lawyers to help provide legal services

Back in August I reported that Utah approved significant changes to the notion of the practice of law and its regulatory scheme (see here).  As I said back then, the report of the Utah Work Group on Regulatory Reform suggested changes intended to improve access to legal services for residents unable to afford private attorneys in civil and family court cases including a proposed increased role for non-lawyers in legal services, including tech companies, and the creation of a regulatory agency to determine how they could help.

One of the main recommendations suggests that Utah loosen or possibly repeal the state’s Rule 5.4, which bans law firms and other legal services operations from sharing fees with non-lawyers.  The proposals were approved unanimously by state Supreme Court, but there’s still work to do, particularly in order to create the administrative regulatory agency, which will be independent of the bar.

To achieve this goal, the Utah Bar will work with the Institute for the Advancement of the American Legal System which announced last week that its new “Unlocking Legal Regulation” project was devised in part to advance Utah’s plans to loosen restrictions on non-lawyers in the state’s legal system.  According to reports, the IAALS will help Utah develop and test a “risk-based regulation system” based on a model the group created that ensures high-quality services, but doesn’t limit service providers to just lawyers.

However, as I have mentioned in the past, not everyone supports the proposals.