Friday, 05 August 2016 00:00

Disappointing ABA Commission Identifies What’s Wrong With Regulation of Lawyers But Fails to Act

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The American Bar Association’s Commission on the Future of Legal Services has just released its final report and recommendations. Responsive Law will have a lot to say about this report over the coming weeks and months, but we’d like to make a few important points upon its release.

Responsive Law testified to the Commission numerous times. The Commission, which had among its membership a number of legitimate advocates for a more open, innovative, and accessible legal system. We had great hopes that it would issue recommendations that would make legal help available to the millions of Americans who cannot afford a lawyer.

The first part of the Commission’s report, in which it outlined its findings, lived up to this promise. Unfortunately, the second part of the report, consisting of the Commission’s recommendations, was a disappointment in which the Commission let down the millions of Americans whose problems it had so thoroughly described.

The Commission’s findings run several pages. Among them are the following, perhaps most relevant to a more accessible legal system:

“Most people living in poverty, and the majority of moderate-income individuals, do not receive the legal help they need.“

“The public often does not obtain effective assistance with legal problems, either because of insufficient financial resources or a lack of knowledge about when legal problems exist that require resolution through legal representation.”

“New providers of legal services are proliferating and creating additional choices for consumers and lawyers.”

“Many lawyers, especially recent law graduates, are unemployed or underemployed despite the significant unmet need for legal services.”

“The traditional law practice business model constrains innovations that would provide greater access to, and enhance the delivery of, legal services.”

“The legal profession’s resistance to change hinders additional innovations.”

To summarize, the Commission identified the following premises:

1) People aren’t getting legal help and don’t know where to find it.

2) There are many innovative legal service providers—both lawyers and non-lawyers—who would be able to help the public if they weren’t constrained by traditional business models and the legal profession’s resistance to change.

The obvious conclusion from these premises is that the ABA should act to remove the barriers that prevent innovative service providers from helping the public. However, the Commission failed to do so.

Where the commission could have made strong recommendation that the ABA remove regulatory barriers, it instead bowed to bar pressure and made a series of milquetoast pronouncements urging further study and consideration.

Rather than saying, “Lawyer-regulators, tear down these walls!” the Commission has engaged in a policy of appeasement toward the ABA, leaving consumers to face the profession’s continued indifference toward their exclusion from the legal system.


The Commission Calls For Further Study of the Issues It Has Spent Two Years Studying

The Commission’s overarching recommendation regarding regulation is that “Courts should consider regulatory innovations in the area of legal services delivery.” After spending two years considering regulatory innovations itself, the Commission needed to do better than telling courts to merely consider them.

The Commission is just as passive in how it addresses specific areas of regulation.  Recommendation 2.1 states “Courts should consider adopting the ABA Model Regulatory Objectives for the Provision of Legal Services.”

Here the Commission encourages multiple layers of bureaucracy between its recommendation and any actual regulatory change. The Model Regulatory Objectives, while important, are not themselves new regulations, but merely a framework to use when adopting regulations. And the Commission doesn’t even recommend that courts adopt the Model Regulatory Objectives, only that they consider doing so!

The next recommendation from the Commission is equally obsequious. Recommendation 2.2 states: “Courts should 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.”

Putting aside whether non-lawyer legal service providers (LSPs) should be regulated by the courts, this recommendation asks the courts only to examine such regulation, not necessarily to adopt it. In fact, the Commission makes clear that (after two years of study) it “does not endorse the authorization of LSPs in any particular situation or any particular category of these LSPs.”

The Commission is at its most timid in addressing alternative business structures (ABS), which would allow non-lawyer ownership and investment in law firms. As we’ve emphasized in comments to the Committee and elsewhere, ABS could foster the creation of mass consumer law firms, which could provide consumers with access to an affordable lawyer for everyday legal matters such as family law, wills, housing, and employment, in the same way that H&R Block provides affordable tax help.

The Commission’s Recommendation 2.4 reads, “Continued exploration of alternative business structures (ABS) will be useful, and where ABS is allowed, evidence and data regarding the risks and benefits associated with these entities should be developed and assessed.”

The Commission notes that it “undertook a robust examination” of ABS. It released an Issues Paper on the subject, which included reference to eight major studies of actual and prospective ABS models published in the last two years. The Issues Paper generated comments from 33 organizations and dozens of individuals. Yet, after all of this, the Commission can only conclude that “continued exploration…will be useful”!

The Commission has already undertaken this useful exploration, and the evidence it has gathered weighed heavily in favor of allowing ABS. Furthermore, recommending repeal of the ABA position against ABS would not have mandated that any state allow ABS, let alone that any firm become one. Unfortunately, though, the Commission was unable to take even that small step.

Giving credit where it is due, the Commission did actually make a wise recommendation with regard to regulation of online service providers. Recommendation 2.3 urges states to use caution in regulating these new service providers, lest they stifle innovation that is bringing legal access to millions of Americans. This is a situation where the generally applicable consumer fraud laws provide adequate protection to the public, and additional regulation could stifle an industry that is just beginning to realize its potential in bridging the access to justice gap.

In most cases, though, the extreme caution exercised by the Commission is not indicative of considered restraint, but of deference to the prevailing wishes of the most hidebound parts of the bar, as embodied by the ABA. What makes this particularly disappointing is that the Commission has many members who are passionate about innovation in the delivery of legal services and who realize the necessity of moving away from the status quo if legal services are ever to be within reach of the average American. In fact, the Commission’s finding of fact make this point exceptionally well.


Why Was The Commission So Deferential To The Bar’s Status Quo?

Why, then, did the Commission act so timidly in failing to make what it had to know were the logical policy recommendations based on its findings? I have no inside knowledge of the Commission’s thoughts or processes, but I have a couple of theories to share.

One possibility is that the Commission, fully aware of the difficulty that any reform proposal faces from the ABA House of Delegates, decided that it would be more prudent to push for incremental reform. Every reform movement has to make the decision between the ideal and the possible. However, if the Commission purposely decided to advocate only incremental reform, then it wasted an opportunity.

The Commission’s recommendations are not legislative proposals to be voted up or down, but the results of the collective wisdom of two years of study. It’s not important in this case whether the recommendations would be approved; it’s important that they solve the problems the Commission was charged with studying. Rather than pulling its punches, the Commission could have played a role as the ABA’s conscience by reminding it of the real access to justice concerns that the bar has created by supporting lawyer-focused, rather than consumer-focused, regulation.

A second possibility is that the Commission was unduly influenced by the lawyer establishment. I don’t mean to suggest any sort of corruption, but rather that the overwhelming majority of voices that the Commission heard were from lawyers and bar groups. Of the hundreds of comments received by the Commission, nearly all were from ABA entities, state courts, state bar associations, lawyers, and businesses providing legal services. At the Commission’s invitation-only National Summit on Innovation in Legal Services, Responsive Law was the only consumer group in attendance. And, the members of the Commission, while often dedicated to reforming the legal system and increasing access to legal services, are all lawyers themselves.

In its findings of fact, the Commission noted,

“The legal profession continues to resist change, not only to the public’s detriment but also its own. During the Commission’s public hearings and the ABA House of Delegates floor debate on Model Regulatory Objectives for the Provision of Legal Services, as well as breakout sessions at the National Summit on Innovation in Legal Services and grassroots legal futures meetings across the country, the Commission repeatedly heard similar remarks about the profession’s delayed adoption of, if not outright resistance to, innovations in technology, systems process improvement, and other developments that could benefit consumers of legal service but would affect traditional ways of delivering legal services.”

It is unfortunate that the Commission may have succumbed to the same resistance to change that it lamented in the rest of the profession. However, such a result may have been inevitable. After all, when a Commission publicizes its activity through the ABA website, holds its hearings at ABA meetings, and gives over 70 presentations with nearly all taking place at bench or bar meetings, it’s not surprising that the process will be dominated by lawyers. Given the predominance of lawyers in this process, it’s a credit to the Commission that its findings of fact were not slanted toward the bar’s status quo.


A Clear Sign That Lawyer Self-Regulation Cannot Work

If this second theory about undue influence is correct, then it provides strong support for Responsive Law’s position (as recently articulated in our testimony to the California Task Force on Governance in the Public Interest and the California Assembly) that ultimate regulatory oversight of the legal profession needs to be vested in a publicly responsive body that does not consist predominantly of members of the profession. In making the rules governing the legal profession, state bars and supreme courts follow much the same process as the Commission did, only on a smaller scale. They issue proposals for public comment that appear where only lawyers are likely to see them, and then hold hearings where they hear only from lawyers about how lawyers should be regulated.

If a commission consisting largely of people sympathetic to the access to justice problems faced by people in this country spent two years studying those problems only to issue recommendations consisting largely of platitudes, aspirations, and calls for further study, then there’s no chance that bar associations or state supreme courts, no matter how noble their motives, can fairly assess regulation of the their own profession. Regulation of the lawyers, by the lawyers, inevitably becomes regulation for the lawyers. The American public, whose interests the bar claims to be protecting, deserves better.

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