Saturday, November 30, 2019

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.

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