Wednesday, February 19, 2020

ABA adopts resolution urging states to reconsider certain aspects of the regulation of the profession after it is amended to eliminate reference to the possibility of non-lawyers participating as owners in law firms -- UPDATED

A few days ago I reported on the opposition to a proposal by the the ABA’s Center for Innovation and four standing committees seeking to promote the provision of legal services by non-lawyers and on the response by the proponents of the proposal.  Go here for that post and for links to the proposal and the letter explaining the position of those who opposed it.

I am writing today to report that two days ago, the ABA House of Delegates approved the resolution by a voice vote at the ABA Midyear Meeting after the resolution was amended to state that "nothing in this Resolution should be construed as altering any of the ABA Model Rules of Professional Conduct, including Rule 5.4, as they relate to non-lawyer ownership of law firms, the unauthorized practice of law, or any other subject."  (The report that supported the resolution was also substantially revised, most notably to eliminate any reference to Rule 5.4 and to the delivery of legal services by anyone other than a lawyer.)

The main opposition to the proposal originates in the fact that although the resolution claims to be an attempt to deal with a real lack of accessibility to affordable legal services for many people in the U.S., there is no evidence that the only "innovations" the resolution seems to support would work to enhance access to services or that it would lead to lower their costs.   These types of initiatives might lead to the creation of multi-professional operations, in which accounting and financial firms will offer a "one shop experience" including legal services to clients who can afford services; but may not do much, if anything, to create more access to those who can't afford legal services.

Some have also expressed that the big proponents for “access to justice” are entities with interests in the tech fields who are interested in commoditizing legal work so the tech companies can make money at the expense of the lawyers.  This was one of the reasons why back in 2012, a Commission of the American Bar Association considered but later abandoned a proposal to allow non-lawyers to own shares in law firms.

Interestingly, California, Arizona, and Utah are currently considering changes to their versions of Model Rule 5.4 to perhaps allow non-lawyers to participate as owners in law firms.

Law Sites has a comment on the effect of the amendments to the proposal here (including the fact that the revision seems to suggest that certain legal needs should be met only by lawyers, and that the reference to Rule 5.4 can be seen as a roadblock to many of the innovations currently being considered in Utah, Arizona and California) and a comment on the proposal as a whole, here.

Faughnan On Ethics also has a comment here, which includes an update on the efforts in Utah, California and Arizona.

UPDATE 2/23/20:  2Civility has a comment here.

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