Will Lawyers Lose Work Over this ABA Resolution?

Feb. 10, 2016, 11:30 PM

Amid a growing debate about a justice gap in the U.S., the American Bar Association has approved a resolution that could allow more non-attorneys to provide legal services.

During the ABA’s Midyear Meeting in San Diego on Feb. 8, the House of Delegates approved Resolution 105, which creates “model regulatory objectives” for the provision of nontraditional legal services. Specifically, the resolution describes 10 standards states should incorporate into licensing rules, professional certification processes and training curriculums being created for non-attorney legal professionals.

A spokesman for the ABA said the model regulatory objectives serve as “recommendations” or “guiding principles” for professional regulatory agencies and court systems because the ABA has no authority to mandate licensing or certification standards. The spokesman, speaking on background because he was not authorized to be quoted by name, said Resolution 105 would have no impact on licensed attorneys, but it could affect current and future non-attorneys providing limited menus of legal services.

Resolution 105 fanned controversy during the midyear meeting, the ABA official said. Some opponents questioned the ethical standards that would be imposed on non-attorney practitioners. Small practitioners objected to potential competition from non-lawyers.

Forty-five delegates registered to speak in favor of the resolution and 35 registered to speak against it, the ABA official said. Notable opponents included the New York State Bar Association, the New Jersey State Bar Association and the ABA’s Solo, Small Firm and General Practice Division. The measure was eventually supported by a voice vote after two hours of debate.

The 10 standards described in the ABA’s resolution relate to consumer protection, professional competence, affordability, transparency, protection of confidential information, independent professional judgement, and meaningful access to justice.

Several states have already moved forward with programs that allow for non-attorneys to administer some legal services. Examples include the Washington State Supreme Court’s recognition of Limited License Legal Technicians (LLLT). In 2012, the court approved a rule, which authorizes non-attorney LLLTs who have met certain educational requirements to advise and assist clients in approved family-law matters, such as such as divorce and child custody. According to the Washington State Bar Association , additional practice areas under consideration include elder law, landlord tenant disputes and immigration, though they are not yet approved.

Similarly, the State Bar of California is exploring limited practice licensing for non-lawyers as a way of increasing both the affordability of legal services and the integrity of such non-lawyer practitioners. In December, the Utah Supreme Court granted preliminary approval to a program that would authorize licensed paralegal practitioners (LPPs) to engage in the practice of law on a limited basis.

In a statement provided to Bloomberg BNA, ABA President Paulette Brown said Resolution 105 creates a framework to guide the courts “in the face of the burgeoning access to justice crisis” and rapid change in the delivery of legal services.

“The ABA Model Regulatory Objectives for the Provision of Legal Services that was adopted provides for the protection of the public, the advancement of the rule of law, the independence of professional judgment and diversity and inclusion among legal services providers as well as freedom from discrimination for those receiving legal services,” Brown said.

The resolution was proposed by the ABA’s Commission on the Future of Legal Services, which was formed in 2014 to examine emerging service models involving nontraditional providers.

“Tens of millions of people do not have access to legal services in the United States,” said Stephen A. Saltzburg, a professor at the George Washington University School of Law, told Bloomberg BNA in an interview. “How can we talk about rule of law and equal justice when so many people are denied any kind of effective access? The reality is we will not be able to provide enough lawyers to represent everyone who needs legal help.”

Saltzburg, who served as a member of the commission on legal services but could not attend the San Diego meeting, said the resolution was an acknowledgement that the ABA’s constituent groups across the country are being forced to respond to demands for legal new services models. In this climate, he said the ABA needs to play a leadership role, helping courts, regulatory agencies, bar groups and law schools support such innovation.

Resolution 105 drew harsh criticism from several groups. Among other things, the NYSBA argued in a position statement that the resolution did not adequately address the “core values” and “ethical standards” of the legal profession. Moreover, NYSBA said the model objectives failed to ensure non-lawyer providers adhere to the ABA’s Rules of Professional Conduct.

Supporters of the resolution eventually accepted an amendment acknowledging certain limits for the provision of nontraditional services. The amendment specified that the resolution does not abrogate existing ABA policies prohibiting non-lawyer ownership of law firms and previously approved core values for ethics and professional responsibility.

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