On February 24, IAALS co-hosted the fifth session of the Redesigning Legal Speaker Series, which explored the role of state bars in regulatory reform. “Redesigning Legal: Unified Bars and the Art of the Long View” featured a panel including:
- John M. Stewart, former president of the Florida Bar
- Hon. Ann A. Scott Timmer, vice chief justice of the Arizona Supreme Court
- Janet Welch, former executive director of the State Bar of Michigan
Their conversation was moderated by Joe Sullivan, former president of the State Bar of Montana and president-elect of the National Conference of Bar Presidents. Video of the event is available below, and a video with transcript is available here.
The conversation kicked off with a discussion about regulatory reform efforts in Florida. Last summer, a special committed tasked with studying this issue published their final report, which included a recommendation to create a Law Practice Innovation Laboratory Program similar to Utah’s regulatory sandbox. The committee’s recommendations “definitely stirred up a tremendous amount of conversation,” Stewart said. He was one of several Florida Bar leaders who met with the state supreme court to discuss the report’s recommendations, and at the time was waiting to hear from them as to the direction Florida would take. (Shortly after this event, the Florida Supreme Court declined to adopt most of the committee’s recommendations, including testing “nonlawyer ownership in law firms, fee splitting with nonlawyers, and broadly expanding the work paralegals are allowed to perform.” However, the court did request that the bar provide alternative proposals to improve the delivery of legal services to Florida’s consumers.)
Janet Welch provided some history of unified bars, as well as the challenges mandatory bars have faced. Despite these challenges, though, she believes “the mandatory bar model in the state is the best possible model for addressing the possibility of change, because you have all the voices in the legal profession potentially gathered—literally incorporated—in the bar.” Michigan is also exploring the possibility of different models for delivering legal services, and the state bar has been a key partner in the state supreme court’s Justice for All Commission, which is working toward the goal of complete access to the civil justice system.
While Florida and Michigan are still in the early stages of exploring regulatory reform, Arizona’s efforts to re-regulate legal services have been underway for almost two years now. Justice Ann Timmer discussed how the state arrived at its current regulatory structure: since the beginning of her tenure, she’s heard firsthand stories from solo attorneys and general practitioners facing competition from do-it-yourself platforms. This led the court to believe it was time to take a new look at some of the ethical rules; in 2018, they created a task force to examine the regulation of law and whether or not the current rules were serving—and protecting—the people of the state.
The task force, which was comprised of lawyers, judges, and community members, had several suggestions, although the two most significant that the court unanimously adopted were the creation of legal professionals who are entitled to practice law in discrete subject areas, including landlord-tenant and family law, and the elimination of ethical rule 5.4, which prohibits fee-sharing. While the Arizona Supreme Court led this effort, they worked closely with the bar throughout the entire process.
“Before the task force even formed any type of conclusions, the court went to the State Board of Governors’ retreat,” Justice Timmer explained. “We gave them a proposal of these things being discussed and answered their questions, so they could be in on the ground early on to be able to weigh in with comments, concerns, and suggestions.” The court also solicited comments from the public, including lawyers. The Board of Governors ultimately voted to recommend the support for the new proposals, and Justice Timmer credits the ability to weigh in from an early stage, and working closely with the court, to this support.
Welch echoed Justice Timmer’s observation that involving the bar early on can make a difference: “I would say one big advantage of our really intimate involvement in the Justice for All Commission is that whatever comes out won’t be a surprise. I think the bar—and particularly, an integrated bar—really has an obligation and an important role in advising the members on an ongoing basis about what is happening to the practice of law, the economics of the practice of law, and what is developing around the country.”
What worked for one state may not work for another, as Stewart pointed out: “One thing that’s really hard about the U.S. is that the states are dramatically different. Florida’s UPL laws are very stringent, [and] the way Florida interprets UPL is entirely within the auspices of the Florida Supreme Court.” In his opinion, re-regulation—at least for a while—has to be an individualized effort: “You have to find a fit on a state-by-state basis.”
Of course, not everyone in the legal profession is equally supportive of the efforts. “There’s this same group that just thinks the sky
“The fact that mandatory bars are incorporated for a public purpose—not for the purpose of the members of the bar—is what gives them the advantage in addressing innovation. We aren’t allowed to operate as a trade association. We have to take the bigger picture.”
It’s not a coincidence, Welch said, that the states that are moving forward most aggressively are states with mandatory bars.
“Change is difficult, I think, for our profession,” Justice Timmer said. But she reminded the audience that the obligation of a self-regulating profession is to ensure that its rules are not simply self-serving for attorneys, but also are in place to serve the public.
We are so grateful to John Stewart, Janet Welch, and Justice Timmer for their insights, and to Joe Sullivan for moderating their conversation.