The American Lawyer is reporting (limited free link here) very significant opposition within the ABA to the work of the ABA Commission on the Future of Legal Services. As the article explains:
[The Commission’s Resolution 105 merely] asks the ABA to adopt “Model Regulatory Objectives for the Provision of Legal Services” that are guided by such benign principles as protection of the public and meaningful access to justice. It also urges each state’s highest court to be guided by these objectives if it is considering new rules to allow activity by “nontraditional legal service providers.”
While the resolution doesn’t advocate for such changes, the mere mention of “nontraditional legal service providers” raises hackles for some in the ABA. The Texas state bar board, for example, has asked Texas delegates to withhold their support for Resolution 105. State bar president-elect Frank Stevenson II of Locke Lord said the board opposes the proposal because it seems to presume there’s a place for nonlawyers to provide legal services. He added that Texas’ chief justice has already set up a commission to study how lawyers can reach more of the public, and his group wants to wait for that group to finish its work.
“Our position shouldn’t be interpreted as rigidly opposed to innovation in the provision of legal services,” Stevenson said. But he added, “We feel lawyers are not fungible with nonlawyers.”
I am not sure what that last quote means, or is meant to mean. Does it merely mean that nonlawyers can not do all that lawyers can do, which would in no way justify or support opposition to the proposal, or does it mean that nonlawyers can not do anything that lawyers do, which is surely absurd.
Remember that the proposal merely acknowledges the possibility of authorization for some form of nonlawyer practice and proposes the goals that should drive regulation of lawyers and nonlawyers, if authorized.
Here are the proposed Regulatory Objectives:
Protection of the public
Advancement of the administration of justice and the rule of law
Meaningful access to justice and information about the law, legal issues, and the civil and criminal justice systems
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
Delivery of affordable and accessible legal services
Efficient, competent, and ethical delivery of legal services
Protection of privileged and confidential information
Independence of professional judgment
Accessible civil remedies for negligence and breach of other duties owed, and disciplinary sanctions for misconduct
Diversity and inclusion among legal services providers and freedom from discrimination for those receiving legal services and in the justice system
Nothing very controversial there, surely. The kicker comes in the “resolved” section (bold added).
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 Objective 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.
So if good old Texas, and others, gets their way, the message is simple. There are to be no “non-traditional legal service providers.” Period. (Texas used what might be called the “not-yet approach” to justify its lack of support.)
That’s pretty bold, given that, as the Report accompanying the Resolution points out with respect to regulatory goals:
Nearly two dozen jurisdictions outside the U.S. have adopted them in the past decade or have proposals pending. Australia, Denmark, England, India, Ireland, New Zealand, Scotland, Wales, and several Canadian provinces are examples.
Whatever face-saving formula might be used to avoid a formal rejection of the approach, I think the media, and indeed the public and legislatures, would be justified in viewing any refusal to adopt the Objectives as an act of contempt towards the public’s interests in comparison to those of the profession. (This is particularity the case given the breadth of wisdom and input that led to and guided their development.)
A “Drop Dead” approach indeed. And a risky one. Remember which big state’s votes helped Ford lose the election in 1976. The House of Delegates considers the issue on Monday.
P.S. Sorry, my age is showing. Many will not get the “Drop Dead” reference. The reference is to the New York Daily News Headline “Ford to City: Drop Dead,” when Ford came out in opposition to financial help for the City. The opposition, and the headline itself, are considered by many to have had a significant impact on the 1976 election result, in which the margin was close. (From the NYT: “Gerald R. Ford and Marie Antoinette did not have much in common, but being misquoted cost both of them their jobs. . . . Mr. Ford never explicitly said “drop dead.” Yet those two words, arguably the essence of his remarks as encapsulated in the immortal headline, would, as he later acknowledged, cost him the presidency the following year, after Jimmy Carter, nominated by the Democrats in New York, narrowly carried the state.”