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ABA Passes Access to Justice Measure After Opposition Fades

Feb. 17, 2020, 11:37 PM

The American Bar Association passed a resolution encouraging state bars to explore innovative approaches to access to justice by voice vote on Monday, after several days of behind-the-scenes negotiations during which its passage seemed unclear.

Proponents of Resolution 115 prevailed in the House of Delegates vote during the ABA midyear meeting in Austin, Texas, in part because they were willing to adjust the proposal’s language to make it more palatable to detractors who had been concerned about its possible impact on legal industry independence. The House of Delegates is the policy-making arm of the ABA, composed of nearly 600 members, two-thirds of whom represent state, local, and specialty-focused bar groups.

The resolution—which encourages states to consider “innovative approaches” toward increasing access to legal services, and to collect data to see if the approaches are working—could add momentum to a burgeoning access to justice movement. Several state bar groups are taking the lead to explore how to make civil legal services more affordable to middle-class and poorer individuals often shut out of the system.

Advocates of the measure, which had been revised to make it clear that any changes to the system be in the interests of the clients and public, said it represented a victory for the ABA.

“The train is leaving the station. The ABA needs to be on that train,” said 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.

“This is a powerfully important moment in the history of the ABA, and of the profession,” said New York State Bar Association President Henry “Hank” Greenberg, who had opposed the measure before it was revised. “We’re taking ownership of the issue.”

The resolution’s opponents first became public through a Jan. 30 letter sent to the House of Delegates and signed by six state bar presidents and others, but they were mostly silent at the Monday meeting. The overwhelming number of voices who voted in favor of the proposal dwarfed the small number of “nays” that followed.

The opponents had argued that the proposal and the accompanying report could spur the erosion of the legal industry’s “critical values” by allowing in outside interests motivated “purely by profit.”

Access to justice reforms under debate in three western states could spur dramatic side effects if widely adopted by allowing the Big Four accountancies and other alternative legal service providers to compete directly with top U.S. law firms. Bar rules currently disallow such companies from opening their own legal operations.

A half-dozen ABA delegates spoke on behalf of the resolution before the vote, but none spoke against it.

Several speakers in favor of the proposal spoke passionately about the need for access to justice reform—and the need for the ABA to have a seat at that table.

“We are the legal experts. We are the ABA,” said Austin-based Texas State District Court Judge Lora Livingston on behalf of the measure. “We make situations better than they were when we found them.”

After the Jan. 30 letter was released, passage seemed less certain then ever—especially given that the ABA has had a history of considering proposals to change its model rules in favor of increased options for nonlawyer ownership, and rejecting them.

But advocates kept pressing their case during regional bar meetings at the conference, panel discussions, and in a series of private communications. They argued that the measure should be seen as little more than a call of support for state-level experimentation, and for data collection—and that it did not specifically support the loosening or repeal of Rule 5.4, which forbids nonlawyer co-ownership of law firms. Changes to that rule are being explored by the state bars in California, Arizona, and Utah.

The debate came to a head during a sometimes-heated Feb. 14 meeting of the ABA’s “Five Bar” group, which included the leadership of several of the largest state bars, as well as Perlman, one of the drafters of Resolution 115. By the end of the meeting, more than one detractor had signaled their willingness to change their mind because of the overriding importance of the issue.

ABA President Judy Perry Martinez said that attorneys need to work to come together on the access to justice issue.

“This is what lawyers do best. We have varying perspectives, but we listen to each other,” Martinez said after the vote. “This was a significant day for the ABA.”

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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