The American Bar Association (ABA) Commission on the Future of Legal Services issued a clarion call for change earlier this month.
Culminating two years of fact-finding and collaboration, the Commission published its Report on the Future of Legal Services in the United States (the Report) at the ABA annual meeting in San Francisco.
The Report contains a detailed, comprehensive, and cogent set of factual findings and policy recommendations. It portrays a system that fails to meet the needs of most its citizens, and one which has lost their confidence and trust. It also sets out an array of innovations that have the potential to remedy the system’s shortcomings. It concludes with a set of policy recommendations designed to encourage and enable adoption of those innovations.
I believe that both the public discussion the Commission generated as it did its work and the content of its Report represent momentous developments for the rule of law in our country.
In particular I believe the way the Commission dealt with the most important and controversial policy issues demonstrated uncommon leadership and is likely to be an effective catalyst for accelerating the pace of progress in realizing the full potential of the American justice system.
Two Years in the Making
When he was elected ABA President in August 2014, William Hubbard, a charismatic South Carolina lawyer, announced the creation of the Commission on the Future of Legal Service. Its mission was to evaluate how well our legal system was serving our people, particularly those with limited means, and to identify ways technology and other modern tools could improve access to justice.
Hubbard appointed a large and capable team to the Commission, including its very effective Chair, Judy Perry Martinez, leader of a major corporate law department in New Orleans. The Commission worked tirelessly for two years, gathering data, holding hearings and meetings across the country, conducting a National Summit on Innovation in Legal Services at Stanford University in May 2015, and inviting public comment on its work as it went along. As the Commission proceeded with its work, the ABA governing bodies weighed in on some the ideas the Commission was considering, with varying degrees of approval and disapproval.
Clarion Call for Change
In its totality, the Report stakes out a distinct set of policies and objectives for the American legal system. It portrays a system that no longer serves its mission adequately, yet has the capacity to get back on track and needs bold new approaches to get out of its own way. It expresses a vision for a better future and offers a set of steps to achieve that vision.
The Report’s Introduction sets the tone for what is to follow. It observes:
- “Access to affordable legal services is critical in a society that depends on the rule of law. Yet legal services are growing more expensive, time-consuming, and complex, making them increasingly out of reach for most Americans.”
- “The legal profession, as the steward of the justice system, has reached an inflection point. Without significant change, the profession cannot ensure that the justice system serves everyone and that the rule of law is preserved. Innovation, and even unconventional thinking, is required.”
The Report’s findings address three main issues: i) access to justice; ii) public confidence; and iii) emerging legal service innovations. The first two present challenges; the third presents solutions.
The findings on access to justice and the public outlook are noteworthy both for their candor and for the granular detail they provide. The Report does not pull punches. It portrays a system that does not meet the needs of as much as 80% of citizens of modest economic means. And a public whose faith in the system has been shaken by a combination of bias, discrimination, complexity and a lack of resources. It is a disturbing picture.
By contrast, the findings on what the Report calls “advancements in technology and other innovations” are quite encouraging. The Report provides as complete a catalogue of the range and kinds of emerging processes, organizations and tools as has ever been assembled. Clearly these new ideas could have a very powerful impact on solving the problems the Report identifies.
At the intersection of challenge and solution, the news is less good. The Report laments the relatively slow pace and uneven application of the innovations it has found. Importantly, it finds that the traditional law practice business model, particularly its reliance on the billable hour, “constrains innovations that would provide greater access to, and enhance the delivery of, legal services.” The Report also finds an innate resistance to change in our profession: “The legal profession continues to resist change, not only to the public’s detriment, but also to its own.”
All 12 of the Report’s recommendations are well-considered and deserve serious attention.
I found Recommendation 2 (“Courts should consider regulatory innovations in the area of legal services delivery”) most significant. It suggests state supreme courts consider three separate changes to current regulations:
- 2: increasing the number of people authorized to deliver legal service;
- 3: facilitating the effective delivery of legal service by new entities which are not law firms;
- 4: enabling investments in law firms by people who are not licensed to practice law [the alternative business structure (ABS) issue].
These are significant for three reasons.
First, each has the potential to have dramatic systemic impact on the cost and availability of legal service. 2.2 brings more supply and lower cost; 2.3 permits effective new models to flourish; and 2.4 allows law firms to raise capital like other businesses so they can afford the investments necessary to build innovative models, particularly in the context of consumer law.
Second, they are addressed to the state supreme courts — the government agencies that actually make the rules governing legal service; and, more importantly, the ones that have responsibility to make sure the system delivers the service it is intended to deliver. The chances are far greater that they will act on these recommendations than bar associations.
Third, they exhibit leadership and courage. The ABA House of Delegates has explicitly rejected the ABS recommendation. But the Commission thinks it deserves further consideration, so it recommended it anyway.
The Commission has put these key issues exactly where they should be. I believe we will see meaningful action as a result.