Maine, Utah, and Reforming Attorney Regulation.

Perhaps it’s appropriate that I visited Maine last weekend.

There’s not much I enjoy more than an early morning run followed by a dip in the ocean. In Maine, I was able to do exactly that each morning. In the surf, I’m like my 9-year old self: my attention focused on the horizon, looking for giant ships and the next big breaker to ride to shore.

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What’s that got to do with reforming attorney regulation?

Reform is no longer on the horizon. It’s approaching shore. Whatever the metaphor, I hope that we get on board or ride the wave.

Proponents of regulatory reform argue that the Rules of Professional Conduct impede access to legal services. Three ideas are central to reforming attorney regulation:

  • allowing non-lawyers to provide services that, now, only lawyers are authorized to provide;
  • relaxing the rule that prohibits (a) non-lawyer investment in law firms; (b) sharing profits with non-lawyers; and (c) partnering with non-lawyers; and,
  • relaxing the rule that prohibits lawyers from providing something of value in exchange for referrals.

For an overview of reforming attorney regulation – aka “re-regulation” —  this post from 2Civility is helpful.

Okay Mike, so where’s Utah figure into all of this?

Both on this blog and at CLEs, I’ve expressed frustration with the pace at which the legal profession adapts to change. One of the most-read posts on this blog is this one in which I argued that when it comes to increasing access by authorizing paralegals to provide legal services, we can’t let perfect be the enemy of good.

Which is why I was so excited to learn that last week, the Utah Supreme Court issued Standing Order 15. The order transforms regulatory reform from “talk” to “walk.”

Today, I’m not going to dive into the weeds of the “regulatory sandbox” that the order creates. Rather, I’m going to highlight (1) the changes it makes to the Rules of Professional Conduct; and (2) the reasons that the Utah Supreme Court approved it.

Standing Order 15:

  • allows lawyers to share fees with non-lawyers;
  • allows lawyers to practice in entities that are owned or managed by non-lawyers; and,
  • repeals the rule that prohibits sharing fees with lawyers in other firms.

In addition, but a topic for another day, Standing Order 15 significantly streamlines the lawyer advertising rules.  

Why adopt such significant changes?  Here’s the press release in which the Court announced that it had adopted the order.  It includes the following paragraph:

  • “Justice Deno Himonas who, along with John Lund, past-President of the Utah Bar, led the effort, summed up the need for innovative solutions in the face of America’s access-to-justice crisis as follows, ‘We cannot volunteer ourselves across the access-to-justice gap. We have spent billions of dollars trying this approach. It hasn’t worked. And hammering away at the problem with the same tools is Einstein’s very definition of insanity. What is needed is a market-based approach that simultaneously respects and protects consumer needs. That is the power and beauty of the Supreme Court’s rule changes and the legal regulatory sandbox.’ Now, under the leadership of the Supreme Court and the Bar Commission, which will have an important role in the Innovation Office, Utah will be the first state in the nation to lay the foundation for a truly accessible and affordable, consumer-oriented legal services system.”

This morning, Justice Himonas and John Lund agreed to meet with me virtually to record an interview that will focus on Standing Order 15, Utah’s new regulatory sandbox, and regulatory reform in general.  I will post it as soon as it’s finished.

This is not the last I’ll broach this topic.  Since June, Justice Cohen and I have been participating in a series of seminars put on by the IAALS Unlocking Legal Regulation Project. We’re learning about the very changes that Utah adopted.  By the end of the year, we anticipate being ready to start a more in-depth discussion here in Vermont. 

Stay tuned.

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Additional Information on Utah Standing Order 15

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