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ABA Softens Access to Justice Measure as Vote Nears

Feb. 15, 2020, 2:42 PM

A resolution before the American Bar Association to address the access to justice crisis has been amended a second time in order to gain support from state bar leaders aligned against the proposal.

The revision spurred New York State Bar Association President Henry “Hank” Greenberg to back the measure after being the lead signatory of a Jan. 30 letter opposing it from a group that also included state bar presidents from New Jersey, Ohio, Pennsylvania, Delaware, and Illinois.

Other state bar leaders also said they could change their minds if the resolution is changed even more to their liking, they said Feb. 14 at the ABA Midyear Meeting in Austin, Texas. The ABA’s House of Delegates is set to vote on Resolution 115 on Feb. 17.

Greenberg said he opposed an earlier version of the resolution because it appeared to be “a wink, a nod, and a green light” for the ABA to back the proposed reforms in California, Arizona, and Utah that would allow nonlawyers more latitude in co-owning legal operations. The proposals have garnered opposition from lawyers concerned about preserving the independence of the legal profession.

The reforms debated by California, Arizona, and Utah could spur dramatic side effects if widely adopted by allowing the Big Four accountancies and other alternative legal service providers more regulatory latitude to compete directly with the biggest U.S. law firms. Bar rules currently disallow such companies from opening their own legal operations, or from joining forces with existing law firms.

But proponents of the measure—which encourages states to consider innovative approaches to address access to justice, and pushes them to collect more data on the problem—have now created a resolution that “a fair person” could conclude is not an endorsement of specific rule changes, said Greenberg, a shareholder with Greenberg Traurig in Albany, New York.

Reform opponents have taken issue with proposed alterations to Rule 5.4 in the three Western states, which prevents lawyers from sharing fees with nonlawyers.

The newest version of Resolution 115 states that “nothing in this Resolution should be construed as altering any of the ABA Model Rules of Professional Conduct, including Rule 5.4, as they relate to nonlawyer ownership of law firms, the unauthorized practice of law, or any other subject.”

By the end of the meeting, more than one critic in the room appeared to soften a bit. That was in part a recognition that they and resolution backers such as Andrew Perlman—dean of Suffolk Law School in Boston and a former chair of the governing council of the ABA’s Center for Innovation, which sponsored the resolution—shared the same overarching concerns about addressing an access to justice crisis that has left millions of civil and family court litigants unable to afford legal assistance.

After a series of communications with state bar leaders over the last 48 hours, the Center for Innovation, with the support of the measure’s co-sponsor committees, changed the resolution through a “friendly amendment,” Perlman said.

The resolution was amended the first time several weeks ago, also an attempt to gain support from opponents.

The next step in the ABA’s resolution amendment process will be for the measure’s authors to go to the Rules and Calendar panel Saturday or Sunday and offer an agreed upon revision to the resolution so that it can be formally changed before the vote.

The situation is still fluid and the resolution could change again before any votes are cast, Perlman said.

To contact the reporter on this story: Sam Skolnik in Washington at sskolnik@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; Rebekah Mintzer at rmintzer@bloomberglaw.com

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