Feb. 19, 2020 – The American Bar Association (ABA) is urging states to consider “innovative approaches to the access to justice crisis,” including regulatory innovations. Some states are already considering regulatory reforms.
The ABA’s House of Delegates on Monday approved ABA Resolution 115, which “encourages U.S. jurisdictions to consider regulatory innovations that have the potential to improve the accessibility, affordability, and quality of civil legal services.”
The resolution makes no recommendations on changing the ABA Model Rules of Professional Conduct, which many states use as a guide for their own ethics rules.
But a report to the resolution notes that some states are experimenting with regulatory changes in the areas of lawyer advertising, nonlawyer ownership in law firms, and new categories of legal service providers.
James Casey, a State Bar of Wisconsin representative to the ABA House of Delegates, said an amended/revised resolution passed without vocal opposition. But, historically, there has been opposition to innovation that may have unintended consequences.
“I think everyone is in favor of innovation, but you have to be careful about what it means in reality, such as the impact on solo and small firms,” said Casey. “This resolution encourages fact-based innovation without any mandate on how that’s done.”
The resolution encourages jurisdictions “to collect and assess data regarding regulatory innovations both before and after their adoption to ensure that changes are effective in increasing access to legal services and are in the interests of clients and the public.”
Access to Justice Crisis
The report on ABA Resolution 115 notes that “access to affordable civil legal services is increasingly out of reach” across the U.S., for low- and middle-income families.
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
The ABA’s access to justice concerns are longstanding and shared by jurisdictions like Wisconsin, which have worked for decades on access to justice issues.
In 2007, the State Bar of Wisconsin found that more than half a million people in Wisconsin face a significant legal problem each year without legal assistance.1
More recent reports from the Wisconsin Access to Justice Commission suggest a significantly greater need for civil legal services today as funding levels decrease.2
The need is particularly acute in the areas of domestic violence, elder abuse, evictions and other landlord-tenant issues, foreclosures, governmental benefits, and family law.
Without adequate funding, legal aid providers such as Legal Action of Wisconsin and Wisconsin Judicare, which offer free civil legal services to individuals and families earning less than 125 percent of the federal poverty level, must turn thousands away.
Pro bono clinics and initiatives fill voids, but the vast and unmet need continues for low-income persons. Meanwhile, individuals of modest means may not seek a lawyer’s help because of cost concerns, or may not understand the value an attorney provides.
Free and affordable legal help is available to do-it-yourself customers and pro se litigants, including court forms, legal documents, and how-to legal guides.
But ABA Resolution 115 urges jurisdictions to explore innovations that supplement and expand existing efforts, noting some jurisdictions have tested and implemented things like online dispute resolution and virtual court services while others are exploring regulatory changes.
The Regulatory Sandbox
Utah is already doing what Resolution 115 appears to encourage. Last year, the Utah Supreme Court approved plans for a “regulatory sandbox” intended to “optimize the regulatory structure for legal services so as to foster innovation and other market forces and to increase access to and affordability of legal services.”
An implementation phase will pilot consumer-centered concepts and structures in a controlled environment that may not necessarily comply with restrictions on lawyer advertising, fee sharing, and ownership of and investment in law firms by nonlawyers.
A report with recommendations from Utah’s regulatory reform group concluded that rules on lawyer advertising and paid referrals are too strict, and allowing lawyers to partner with technology companies can open more access to justice doors.
“Serious reform requires recognition that our existing regulatory approaches are not working,” notes the report.
“And they are not working because they are not risk-sensitive and market-driven. Instead, they attempt to solve potential problems by imagining what could possibly go wrong and then dictating the business model for how legal services must be provided.”
Most jurisdictions, including Wisconsin, prohibit lawyers from sharing legal fees with nonlawyers or partnering with nonlawyers to provide legal services. These regulatory provisions are intended to ensure the lawyer’s independent professional judgment.
Utah is not alone in its quest to find solutions to the access to justice problem through regulatory innovation. An Arizona task force has recommended elimination of ethics rules that prohibit law firms from financially partnering with nonlawyers or entities.
The Arizona task force also advocates for nonlawyer legal service providers to provide limited representation in court and administrative proceedings.
A pilot program, approved by the Arizona Supreme Court, is already underway to allow “licensed legal advocates” to provide legal advice to domestic abuse survivors.
Experienced social service professionals trained on trauma can receive legal training to become licensed legal advocates.
Other states have blazed a similar path. In 2014, Washington State became the first jurisdiction to license nonlawyers in the limited practice of law.
Limited License Legal Technicians (LLLTs) can provide limited legal assistance to pro se clients in divorce, child custody, and other domestic relations matters, including preparing legal documents. LLLTs may also assist pro se litigants at depositions and respond to direct questions from the court on factual and procedural issues.
ABA Resolution 115 recognizes that states are already exploring regulatory innovation to improve access to justice, and encourages other states to do the same.
State Bar of Wisconsin President Jill Kastner, who works at Legal Action of Wisconsin, encourages new ideas to improve access to justice.
“The State Bar is always looking at innovative ways to improve access to justice,” she said. “Like other jurisdictions, we have a serious access to justice problem in Wisconsin.
“There is no one-size-fits-all solution. What works for one jurisdiction may not work for another. But as more states experiment with innovative ways to improve access to justice, we can certainly look at whether similar solutions could work for us.”
1 State Bar of Wisconsin, Access to Justice Committee, Bridging the Justice Gap: Wisconsin’s Unmet Legal Needs (2007).
2 Wisconsin Access to Justice Commission, The State of Equal Justice in Wisconsin (2013).