California Bar Swamped by Comments Opposing Ethics Rule Changes

The State Bar of California has been inundated with more than 400 comments in response to a series of sweeping proposed rule changes that include allowing nonlawyers to share in law firm profits and provide legal advice.

The rule change proposals made by the state bar Task Force on Access Through Innovation of Legal Services have drawn a total of 420 comments so far from about 250 commenters, according to newly public state bar data. Some 379 of the comments were submitted in opposition to the proposals.

More than 100 comments were filed to the bar in the first 24 hours after the group issued notice that the comment period had begun on July 23, a bar spokeswoman said.

The proposed changes could loosen long-standing law firm ownership and fee-sharing rules, and open the door wider to other potential providers outside the traditional legal sector who want to market legal services to consumers. Such changes would be first of their types in the nation—what the Artificial Lawyer legal tech blog recently described as “the biggest changes to legal market regulation in American history.”

The individual rule change that received the most comments, state bar proposed rule change 2.0, would authorize nonlawyers, with appropriate regulations in place, to provide certain types of legal advice and services without a requirement that the delivery system be technology-driven.

The rule would provide an exemption to bar rules that collectively prohibit the unauthorized practice of law, and could apply in areas of “critical need,” including evictions, and domestic violence and immigration cases.

As of Aug. 5, the state bar had received 12 comments in support of loosening the law—versus ten times that number, 125—opposed. The comment period runs through September 23.

The bar spokeswoman confirmed that overall this set of proposals has received a large number of responses. But there have been other occasions where respondents had a lot to say, such as a recent public comment period on the rules for re-fingerprinting, which she said generated 2,600 comments in 45 days.

Sounding Off

Many of those who submitted comments to the bar didn’t mince words.

“Allowing non-lawyers to practice law cheapens our law licenses,” wrote one opponent, Marisol Alarcon, an immigration lawyer from Carpenteria, Calif. “More importantly, it would empower and allow non-lawyers to take advantage of vulnerable populations needing legal representation.”

“As a workers compensation practitioner I witness non lawyers dragging down the practice of law,” wrote another, who asked to remain anonymous.

The proposal comes as the state assembly recently passed a bill that would ban the use of so-called “notarios,” consultants who offer immigration assistance but aren’t licensed to practice law.

A main impetus behind the California bar task force is the growing movement for access to justice. Advocates in this movement seek to make legal representation more affordable for middle class and poorer citizens who often have represented themselves in sensitive court matters, to their detriment, because they can’t afford to pay an attorney.

“We are encouraged by the number of responses received so far,” Donna Hershkowitz, State Bar chief of programs, told Bloomberg Law in a written statement. “We are committed to increasing access to justice in California and encourage lawyers and the public to provide input on the innovative approaches contained in this report from the Task Force.”

Panels in Arizona and Utah are weighing similar changes to California, as is the Association of Professional Responsibility Lawyers, a small national bar group made up of lawyers who focus on legal ethics-related issues.

Some commenters also expressed fears that the Big Four accountancies, which boast significant legal operations outside the U.S., could use the rule changes to finally, and more fully, access the U.S. legal market and pose a challenge to traditional law firms.

The State Bar of California is holding a public comment meeting on the proposed changes on Aug. 10 in San Francisco.

Once the public comment period ends in California, and the task force then finalizes its proposed changes, the state bar’s board of trustees will vote on them in January.