The ABA Commission on the Future of Legal Services, is seeking comments on proposed ABA Model Regulatory Objectives. The proposed Objectives are as follows:
A. Protection of the public
B. Advancement of the administration of justice and the rule of law
C. Access to information about, and advancement of the public’s understanding of,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 confidential information
H. Independence of professional judgment
I. Accessible civil remedies for breach of duties owed and disciplinary sanctions for incompetence, misconduct, and negligence
J. Diversity and inclusion among legal services providers and freedom from discrimination in the delivery of legal services and in the justice system
I would assume that the purpose of these Objectives is to provide an environment for assessment of the proposals that will emerge from the Commission’s Working Groups as suggestions for significant changes in th regulatory environment.
Indeed, the key paragraph in the accompanying materials is the following:
Regulatory objectives are different from the legal profession’s core values in at least two respects. First, the core values of the legal profession are (as the name suggests) directed at the “legal profession.” By contrast, regulatory objectives are intended to guide the creation and interpretation of a wider array of legal services regulations, such as regulations covering new categories of legal services providers. Second, while the core values of the legal profession remain at the center of attorney conduct rules, they offer only limited, though still essential, guidance in the context of regulating the legal profession. A more complete set of regulatory objectives can offer U.S. jurisdictions clearer regulatory guidance than the core values typically provide. [Footnote omitted.]
Explicit in this language is the (new) possibility of additional categories of legal services providers. Also implied is the possibility of broader mechanisms for regulation than now exist.
In any even, the good news is that the proposed objectives imply a broader taking of responsability for the whole system than the individual regulation of lawyer behavior, which at least in practice has tended to be the main focus of most of the system.
Thus Proposed Objective D. Delivery of affordable and accessible legal services, is stronger than the prior language governing lawyers’ responsibilities, adopted by the ABA House of Delegates on July 11, 2000 which was the “lawyer’s duty to promote access to justice.” The new language is much more specific, adding “affordable” and replacing “promoting” with “delivery.” The replacement language actually means doing it, while the original meat talking it up.
Of course, language in many if not all of the goals also supports a comprehensive approach, such as those dealing with the protection of the public, transparency, diversity and the “Efficient, competent, and ethical delivery of legal services”
While the proof of this pudding will be in its eating, and specifically what actual changes are recommended, not to mention whether they are adopted by the ABA as a while, it is nice to see the Commission laying the groundwork for flexibility in the future.
Most importantly, this proposal, and particularly Objective D, fits in nicely with the Conference of Chief’s/COSCA Resolution on 100% Access to Justice Services. If that goal is to be met bar and other regulation of legal services is going to have to be modified not just to allow, but to incentivize such delivery by lawyers.
As more and more organizations sign on to equivalent goals, it will become easier for states and access to justice commissions to develop concrete strategic plans with outcome measures and goals, as called for in the CCJ/COSCA Resolution.
Richard Zorza's Access to Justice Blog 