I was a proponent of a resolution in the ABA House of Delegates regarding establishment of regulatory objectives for courts to use in regulation of non-lawyer providers of legal service. As you may know, some legal service providers are not lawyers, and many of these services are provided over the internet. On a daily basis, these services are provided to the public without any regulation. Lawyers are regulated, and the public is protected. Non-lawyer providers are not regulated, and the public is not protected. The debate was between those in the House of Delegates who believed the ABA should lead the discussion in how to regulate these non-lawyers, and those who believed the ABA should instead enforce existing rules to keep non-lawyers from providing legal services at all.
Here are the comments I prepared for presentation in the ABA House of Delegates (that I did not get to present due to a motion to cut off debate and call for the question):
Fact – non-lawyers are providing legal services to members of the public. Those of you who came up with me through YLD in the 90’s remember two very controversial debates on germaneness. Defeated proponents of those resolutions came away feeling that just about anything and everything is germane, and we have multitudes of resolutions over the past 20 years, that most are proud of, to prove it. Based on my stated fact, I can only conclude that opponents have finally found something that’s not germane. Let the regulators deal with it themselves. It’s not the concern of the American Bar Association. We’re not going to help you come up with guidelines to help you should you decide to regulate legal services not being provided by lawyers. We will help regulators and legislators or “urge” them on every other issue under the sun, but not this one.
Collectively, leaders in our profession must be engaged in the conversation regarding changes occurring in legal services delivery. This resolution is a great step in doing so. It provides guidance, and perhaps also indicates that we are not being choked by sand. Some may fear a different slippery slope than I do. What I fear is a slope created by recent unfair and inaccurate, national publicity that possibly led viewers to wrongly conclude that we cannot, or will not, regulate ourselves. It is a slope of increased grade, when the press, viewing this present debate, and assuming we do not pass it, portrays us as turf protectors. The end of the slope may be the conclusion that we are no longer worthy to lead discussions on the future of legal services delivery.
When I speak about what lawyer leadership needs to look like in the future, whether leadership of firms, clients or society, I talk about three main areas of emphasis…greater lawyer resiliency, practice innovation and professional engagement. It is in this area of professional engagement that I have greatest concern. I believe that if we do not pass the resolution, the ability of the ABA to be professionally engaged in the issue of regulation of non-lawyer provision of legal services, which is obviously a reality whether or not we acknowledge it, is in jeopardy.
Lawyer leaders will best be able to lead this discussion, and influence others, if those we desire to lead trust us to do so. Trust after all is what leadership is all about. What looks like self-interest will not foster the kind of trust necessary for our profession to continue to lead the discussion. There are certainly good intentions on the part of those in our profession who desire to protect the public through ways of the past. Regardless, times are changing, and the public craves our leadership. It is the duty of lawyer leaders to transition our efforts away from yesterday’s assumptions, and to collectively take a greater role in what the present, and a future, with non-licensed legal service providers should look like – making sure that the public is protected, even when society, perhaps over our desires or recommendations, allows non-lawyers to provide legal services.
So I wonder: Are we ready to lead through this change that is already upon us?
Here is the text of the Resolution as approved:
RESOLVED, That the American Bar Association adopts the ABA Model Regulatory Objectives 1 for the Provision of Legal Services, dated February, 2016.
ABA Model Regulatory Objectives for the Provision of Legal Service
A. Protection of the public
B. Advancement of the administration of justice and the rule of law
C. Meaningful access to justice and information about the law, legal issues, and the civil and criminal justice systems
D. Transparency regarding the nature and scope of legal services to be provided, the credentials of those who provide them, and the availability of regulatory protections
E. Delivery of affordable and accessible legal services
F. Efficient, competent, and ethical delivery of legal services
G. Protection of privileged and confidential information
H. Independence of professional judgment
I. Accessible civil remedies for negligence and breach of other duties owed, and 16 disciplinary sanctions for misconduct, and advancement of appropriate preventive or wellness programs.
J. Diversity and inclusion among legal services providers and freedom from discrimination for those receiving legal services and in the justice system
FURTHER RESOLVED, That the American Bar Association urges that each state’s highest court, and those of each territory and tribe, be guided by the ABA Model Regulatory Objectives for the Provision of Legal Services when they assess the court’s existing regulatory framework and any other regulations they may choose to develop concerning non-traditional legal service providers.
FURTHER RESOLVED, That nothing contained in this Resolution abrogates in any manner existing ABA policy prohibiting non lawyer ownership of law firms or the core values adopted by the House of Delegates.