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.
Recently the American Bar Association’s Commission on the Future of Legal Services published a paper on how to make legal checkups more effective and widely available to the public. Responsive Law believes the guidelines have promise and issued comments on ways the guidelines could further benefit consumers.
Legal checkups are a critical tool that can identify when consumers’ problems have legal solutions. One example would be an online questionnaire where a consumer plugs in their information, and software judges whether or not their problem has a legal solution. There are millions of people in the United States that lack access to legal services, many of whom do not even know they have a problem those services could solve. In New York State alone there are nearly two million people who don’t realize their problems have legal solutions. Legal checkups would allow people to receive immediate feedback and legal solutions and resources.
The Commission’s guidelines would protect a consumer’s privacy, require the accuracy of documents used for checkups, ensure that all checkup providers are truthful and honest with consumers, and that they must provide a list of legal resources to the consumer if a problem is found.
The language in the issue paper seems to indicate that the ABA envisions bar associations as the primary promoters of legal checkups to the public. Responsive Law urged the Commission that the private sector has a role to play in providing legal checkups to consumers. A major ad campaign by a private business can do more than PSAs from the bar to raise awareness of the need for legal checkups. For instance the online legal service marketplace Avvo spent $20 million this year on an ad campaign that raised awareness of the need for legal services.
However the ABA could help consumers even more by clarifying that non-lawyers can give these checkups. This would give consumers the choice between a lawyer or a trained non-lawyer. Without having to worry about fighting court battles just to keep their businesses afloat, non-lawyer service providers could invest more into innovating this field and provide more legal checkups to a public in desperate need of them.
To read Responsive Law’s full testimony click here.
James Duffy is a Responsive Law Intern.
Yesterday at its midyear meeting in San Diego, the American Bar Association passed a resolution urging states to adopt regulatory objectives for all non-traditional legal service providers (LSPs). This is a pleasant surprise and victory for those advocating for more accessible and affordable legal services, as it signals the ABA is looking forward at the future of legal services and is open to the creation of new types of LSPs.
The resolution does not strictly advocate for the creation of any new forms of LSPs, but it outlines a framework on how the courts will address them and indicates openness to expanding non-lawyer LSPs. When arguing for the passage of the resolution, Judy Martinez, the chairman of the Commission on Future of Legal Services stated, “There’s room in this space to think differently about how we provide legal services.” These non-traditional LSPs include already existing programs such as the Limited License Legal Technicians (LLLTs) in Washington State and housing court navigators in New York. The resolution includes basic objectives for regulating all LSPs, such as maintaining protection of the public, advancing administration of justice and the rule of law, and meaningful access to justice. This Resolution comes less than a week after the Conference of Chief Justices passed a resolution supporting transparency in the regulations lawyers and non-lawyer LSPs. The mention of non-lawyer LSPs in both resolutions signals an increase in support for the creation of new providers that are better able to meet the legal needs of all consumers.
Although the resolution passed, it faced opposition from many members of the ABA. The outcry came from protectionist concerns for the industry, with one member opposed to the resolution because it “presume[s] there’s a place for non-lawyers to provide legal services.” The complaints about non-lawyer LSPs from Bar Associations have been based on complaints such as the already high unemployment rate of recent law school graduates and the business that they could take from small law firms. These objections clearly show that lawyers who oppose new types of LSPs do so based on their own interests and ignore the large groups of Americans who cannot afford legal services. These claims rooted in a “save our profession” attitude are examples of the antitrust concerns that have arisen in the wake of the U.S. Supreme Court’s decision in North Carolina Board of Dental Examiners v. FTC.
After the Resolution passed, ABA President Paulette Brown said, “The adoption of Resolution 105 is intended to create a framework to guide the courts in the face of the burgeoning access to justice crisis and fast-paced change affecting the delivery of legal services.” Responsive Law Executive Director Tom Gordon lauded the decision, saying “It’s wonderful to see that at least part of the ABA has recognized that change is coming to the legal profession and that it’s the bar’s responsibility to adapt to that change in a way that benefits consumers, rather than naked self-interest.”
Bridgette Harrison is a Responsive Law intern.
The American Bar Association has convened a Commission on the Future of Legal Services to study ways in which innovation and new regulatory models can help meet the public’s needs for legal assistance.
Responsive Law has submitted the first in what it expects will be a series of comments to this commission. We told the commission that one of the main things the legal profession needs to do is to roll back many of the regulations that it has imposed to maintain the lawyer cartel over legal services. Restrictions on who may provide legal services are one of the largest obstacles to wider access to legal help. A lack of innovation in the business model of law is another obstacle. The latter is caused by regulations banning outside investment in law firms, which could allow them to serve everyday legal needs the way that H&R Block serves everyday tax filing needs.
You can read our comments to the commission here. As the commission continues its work, we'll be continuing to make sure it hears the voice of legal consumers, so stay tuned for further developments.
What a difference two years can make!
A couple of years ago, I wrote about the ABA Journal's 2011 list of "Legal Rebels"—lawyers who are changing the legal profession. The 2011 list consisted mostly of lawyers who were making minor adjustments to the structure of large law firms. Only two of the ten Legal Rebels that year were doing anything to make law more accessible to the general public. The 2011 list continued the magazine's trend of largely ignoring those who made a real difference in favor of corporate lawyers who were making changes that inched the profession toward the 21st century.
The ABA Journal has just released its 2013 Legal Rebels list, and the list is quite different from two years ago. Not one of the ten lawyers on the list comes from a large law firm, and several are true innovators. One of this year's honorees is Raj Abhyanker, the founder of Legal Force, a Palo-Alto company that offers customers a storefront of user-friendly legal books and forms to choose from and affordable 15-minute consultations with onsite lawyers. Another slot belongs to Michael Poulshock, whose Hammurabi Project aims to automate large bosies of law to make them understandable and usable by both lawyers and nonlawyers. And Renee Knake and Daniel Katz of Michigan State University's Reinvent Law program are training law students to reach the unserved middle class using innovative business models and technology.
In 2011, I noted that many innovators were hampered by prohibitions on outside investment in law practices. Those bans are still in place, but not if some of these Legal Rebels have anything to say about it. Professor Knake's scholarship focuses on these bans, which she believes are unconstitutional. The future may be closer than we think.