Innovation in Attorney Regulation

I’ve written often on innovation in attorney regulation.  In short, having worked in the field for 22 years, I believe that a professional & comprehensive regulatory program must include three components:

  1. aggressive outreach, guidance, referrals and education to assist lawyers to comply with their professional responsibilities;
  2. meaningful sanctions for serious violations; and
  3. a non-disciplinary diversion program for low-level misconduct.

In order:

  1.  is known as “proactive regulation.” As I’ve written, it works.
  2. both deters misconduct and promotes public confidence in the Judiciary’s ability to regulate the profession.  Public confidence is critical: without it, one of the other branches might seek to step in.
  3. provides a blend of the benefits of 1 & 2.

Lately, “innovation in regulation” has taken on new meaning.  Many in the field view aspects of the current model of attorney regulation as serving to impede access to justice.  In particular,

  • by defining the “practice of law” to prohibit anyone but lawyers from performing & providing certain tasks & services; and
  • by prohibiting nonlawyers from owning or investing in law firms.

Earlier this week, the ABA House of Delegates considered Resolution 115.  It was proposed by the ABA’s Center for Innovation and the ABA’s Standing Committees on:

  • The Delivery of Legal Services
  • Ethics & Professional Responsibility
  • Attorney Regulation, and
  • Public Protection in the Provision of Legal Services.

The resolution (as proposed) and accompanying report are here.

At first blush, the original language might not appear controversial:

“RESOLVED, That the American Bar Association encourages U.S. jurisdictions to
consider innovative approaches to the access to justice crisis in order to help the more
than 80% of people below the poverty line and the majority of middle-income Americans
who lack meaningful access to legal services when facing critical civil legal issues, such
as child custody, debt collection, eviction, and foreclosure;

FURTHER RESOLVED, That the American Bar Association encourages U.S.
jurisdictions to consider regulatory innovations that have the potential to improve the
accessibility, affordability, and quality of civil legal services, while also ensuring necessary and appropriate protections that best serve the public; and

FURTHER RESOLVED, That the American Bar Association encourages U.S.
jurisdictions to collect and assess data regarding regulatory innovations both before and
after the adoption of any innovations to ensure that changes are effective in increasing
access to legal services and are in the public interest.”

If my use of the phrase “at first blush” did not already give it away, Resolution 115 proved quite controversial.  Not so much because of the “resolutions,” but because of the report’s recommendation that states consider:

  • creating new categories of legal service providers;
  • allowing lawyers to partner & share fees with nonlawyers; and,
  • rethinking what constitutes the “unauthorized practice of law.”

For a sense of the opposition, I suggest this story on or this letter from the President of the Ohio State Bar Association to its members.

In the end, the ABA House of Delegates passed a “revised” version of Resolution 115.  The ABA Journal has the story here, while the resolution as adopted is here.

I am blogging about this for two reasons.

First, last week, the Supreme Court sent out for comment a proposal to create the Bar Assistance Program.  Essentially, bar counsel would focus entirely on prevention and assistance, with no role in the process by which complaints are reviewed.  The upshot: I would no longer screen disciplinary complaints. I blogged about the proposal here and explained why I support the concept here.

Second, at its meeting scheduled for March 27, the Professional Responsibility Board will consider whether to spend the remainder of this year studying whether:

  1. lawyers should be required (a) to carry malpractice insurance; or (b) to disclose to clients the fact that they don’t;
  2. paralegals should be authorized to perform tasks & services that, for now, only lawyers are authorized to provide; and,
  3. to relax the prohibition on nonlawyer ownership & investment in law firms.

I will be very clear: the March meeting is one at which PRB members will familiarize themselves with the issues and decide whether either merits further consideration and, if so, who else to involve.  No substantive decisions will be made.

Innovation isn’t a bad thing.

Many lawyers currently practicing in Vermont began here when there was no full-time disciplinary prosecutor.  Cases were assigned ad hoc to lawyers willing to take them.  Even more current practitioners worked here when we put all our resources into disciplinary investigations and prosecutions, and none into proactive guidance and assistance. I’m biased, but each innovation seems to have worked out okay.

As many of you know, I’m a former basketball coach.  Coaches have a saying that they love to use to motivate their players to practice harder:  “if you’re not getting better, you’re getting worse.”

We should keep that in mind.   We won’t improve by accident.

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