♫ It’s time we stop, hey,
what’s that sound
Everybody look what’s going down… ♫
– Music and lyrics by Stephen Stills,
recorded by Buffalo Springfield.
There is something happening here. Traditional lawyer regulation “has not proven to foster innovation” and this in turn is seen as holding back innovations that could increase access to justice. For example, in 2018, The Board of Trustees of the State Bar of California (“Board”) received a Legal Market Landscape Report (bit.ly/bt1019p26-3) suggesting that “some of the rules and laws governing the legal profession may be hindering innovations that could expand the availability of legal services.” As a result, the Board appointed a Task Force on Access Through Innovation of Legal Services (“ATILS”) and assigned it to identify possible regulatory changes to remove barriers to innovation in the delivery of legal services by lawyers and others. ATILS was charged with balancing dual goals: consumer protection and increased access to legal services. They came up with 16 concept options for regulatory changes.
The report (bit.ly/bt1019p26-1) found that: “The slow evolution of the rules governing lawyers, including, but not limited to, lawyer advertising and solicitation, fee sharing/fee splitting, and UPL, are examples of regulatory reforms failing to keep pace with changes in the legal services market, including changes in the market driven by evolving innovation and technology and related consumer behaviour and preferences.”
But California is not alone.
Utah and Arizona are also looking at the issue of the regulation of lawyers and its effect on access to justice, in particular the issue of Alternative Business Structures (“ABSs”):
The Utah group – which was heavily influenced by the experience in England and Wales – said ABSs, backed by a new regulatory regime, would help foster innovation and promote other market forces “so as to increase access to and affordability of legal services.” (bit.ly/bt1019p26-2)
As of August 28, 2019, the final report of the Arizona task force has yet to be published, but it was reported that minutes of its meetings confirm that it supported the introduction of ABSs along with entity regulation.
Of course ABSs have been allowed in the UK since 2013.
Underlying these reports is the message that technology has been the biggest factor of change and innovation over the last while, yet lawyers are failing to realize the benefits of change and innovation that technology offers. Access to justice suffers as a result.
The Utah Bar, for their part, issued the report “Narrowing the Access-to-Justice Gap by Reimagining Regulation.” (bit.ly/bt1019p26-4)
Utah stated that eliminating or substantially relaxing the rule allowing lawyers and non-lawyers to share fees was “key to allowing lawyers to fully and comfortably participate in the technological revolution.” (bit.ly/bt1019p26-2)
Utah felt that they should encourage “non-traditional sources of legal services, including non-lawyers and technology companies, and allow them to test innovative legal service models and delivery systems through the use of a “regulatory sandbox” approach, which permits innovation to happen in designated areas while addressing risk and generating data to inform the regulatory process.” (bit.ly/bt1019p26-2)
We need to start the process of regulatory reforms to allow these changes to take place here; for without them, as we all know, you step out of line, the man come and take you away.
What are some of the key recommendations and findings of the California and Utah reports?
Legal Market Landscape Report (bit.ly/bt1019p27-1)
- Narrowing restrictions on the unauthorized practice of law (“UPL”) to allow persons or businesses other than a lawyer or law firm to render legal services, provided they meet appropriate eligibility standards and comply with regulatory requirements;
- Permitting a nonlawyer to own or have a financial interest in a law practice; and
- Permitting lawyers to share fees with nonlawyers under certain circumstances and amending other attorney rules regarding advertising, solicitation, and the duty to competently provide legal services.
The potential benefits of these recommendations were listed as follows:
- Improving the ability of new providers to enter the legal services market;
- Creating incentives for innovators to collaborate with lawyers to develop technology-driven solutions;
- Expanding options for entities and individuals other than lawyers to support and participate in these developments through business ownership and capital investment.
- Limiting the new UPL exceptions to only those providers who meet eligibility qualifications and become regulated;
- Requiring the establishment of ethical standards comparable to those imposed on lawyers and law firms;
- Conditioning the new system on the establishment of equivalent protections afforded by the attorney-client privilege and a lawyer’s ethical duty of confidentiality; and
- Including in the revised fee-splitting rule a provision prohibiting interference with a lawyer’s independent professional judgment.
Narrowing the Access-to-Justice Gap by Reimagining Regulation Report (bit.ly/bt1019p27-2)
“Certain rules of professional conduct have been viewed by lawyers as impeding their ability to increase business and survive in the online world. Restrictions on lawyer advertising, fee sharing, and ownership of and investment in law firms by non-lawyers are concepts that need serious amendment if we are to improve competition and successfully close the access-to-justice gap.”
In a July 11 meeting, the Arizona task force voted “to amend the state’s ethical rules to allow lawyers and non-lawyers to form new legal services businesses known as ‘alternative business structures.’” They stated that they believed the Arizona approach had much to offer. Indeed, they viewed the elimination or substantial relaxation of Rule 5.4 as key to allowing lawyers to fully and comfortably participate in the technological revolution. They felt without such a change, lawyers will be at risk of not being able to engage with entrepreneurs across a wide swath of platforms.