The American Bar Association (ABA) took profoundly important action last week at its ABA Midyear Meeting in San Diego by adopting a conceptual framework for state regulation of legal service. The framework was expressed as a set of “Model Regulatory Objectives for the Provision of Legal Service,” denominated ABA Resolution 105.
It is the first time the ABA has articulated objectives for regulation in this way.
While the specifics of Resolution 105 are not surprising or controversial, they are enormously significant. For reasons discussed below, I believe they will accelerate the progress of state regulatory change, particularly in expanding the scope of legal service which may be delivered by professionals who are not licensed lawyers.
Update: Resolution 105 was passed on a voice vote during the ABA conference after the resolutions was amended to emphasize that it did not overturn existing ABA policies barring non-lawyers from owning law firms and prohibiting lawyers from sharing fees with non-lawyers. Additionally, a separate amendment aimed at increasing oversight of non-lawyers failed on a separate voice vote.
The Genesis of the Statement of Objectives: Commission on the Future of Legal Services
Resolution 105 was proposed by the ABA’s Commission on the Future of Legal Services, which was created during the term of ABA President William Hubbard (2014-‘15) and chaired by Judy Perry Martinez. Both Hubbard and Martinez exhibited inspiring leadership in guiding the work of the Commission to examine the challenges our legal system faces and possible solutions.
Regulation of legal service occurs, of course, at the state level, determined and administered by state supreme courts and state bar associations. In light of the innovative nature of potential solutions it examined and the degree of controversy that many of them generate, the Commission concluded that state regulators would benefit from a cohesive framework for the analysis of reform.
How do we achieve greater access to justice? How do we deliver legal service at a reasonable cost? How do we achieve change without sacrificing critical standards of quality and ethics? Resolution 105 is designed to provide state regulators a balanced and compete set of factors to consider in answering these questions.
What Resolution 105 Provides
Fundamentally, Resolution 105 answers the question, “What are states trying to accomplish?” as they regulate legal service.
It articulates 10 specific objectives, which cover the full scope of what regulation seeks to achieve. Most of the factors are traditional, such as protecting the public and advancing the rule of law. Four of the objectives reflect considerations borne of contemporary challenges:
- Meaningful access to justice;
- Affordability of legal service;
- Efficiency of legal service; and
- Diversity of providers and freedom from discrimination for clients.
Resolution 105 does not endorse any particular reform. The Commission’s accompanying report states explicitly that Resolution 105 does not imply a position of the ABA on particular proposals. Indeed, in what seems like an excess of caution, Resolution 105 was amended at the House of Delegates to provide that it does not “abrogate ABA policy prohibiting non lawyer ownership of law firms.”
Why Resolution 105 Is So Important
Resolution 105 is significant for four reasons.
First and foremost, it gives the states a useful framework for considering potential changes in their regulations. Almost any significant reform will be controversial and generate vigorous opposition. Resolution 105 provides a balanced and neutral context for evaluating the arguments for and against any given proposal.
Second, Resolution 105 and the Commission’s report recognize that the scope of what the states must consider is broader than just the “practice of law.” It extends to the full set of people and professional work that increasingly make up modern “legal service.” In so doing, it legitimizes the role of what the Commission’s report calls “non-traditional legal service providers”, recognizing that there is an important role for people who are not licensed lawyers in the delivery of legal service.
Third, Resolution 105, by virtue of the Commission’s report, recognizes that states are considering expanding the scope of service which “non-traditional providers” are authorized to deliver. This official acknowledgement is likely to encourage states to be more open to such expansion than they otherwise would have been.
Finally, by providing that the regulation of legal service should aim to increase access to justice, make legal service more affordable, more efficient, and equally available to all citizens, Resolution 105 included issues that clearly will benefit from permitting more professionals to play a greater role in the delivery of legal service.
Resolution 105 effectively levels the conceptual playing field. It continues to recognize the importance of protecting the public, which opponents of change invoke to resist reform. But it encourages states also to take account of these important competing considerations. This balanced approach is certain to hasten progress in many jurisdictions.
Resolution 105 Reflects True Leadership
I applaud the ABA, former President Hubbard and Committee Chair Martinez for their leadership in the passage of Resolution 105.
As the Commission’s report says, we have a “burgeoning access to justice crisis” in the United States. Beyond that, legal service delivery is inefficient and far more expensive than it needs to be, given the progress of process design and technology.
The problems are well known, but progress has been stunningly inadequate.
Lawyers and their associations need to lead the response to these problems. Part of the duty of each member of the bar is make a contribution to ensuring the that our system of laws functions effectively. If lawyers expect to continue to be self-regulated, they need to step up and address the challenges we face.
Resolution 105 exemplifies the sort of leadership that our legal system needs. Bravo.