ABA House approves model regulatory objectives for nontraditional legal services

Judy Perry Martinez

Judy Perry Martinez, chair of the Commission on the Future of Legal Services. Photo by Earnie Grafton.

After extended and heated debate Monday [Feb 8, 2016], the ABA adopted a resolution that would guide states in their regulation of nontraditional legal services.

Resolution 105 provides model regulatory objectives for state regulators considering how to regulate nontraditional legal service providers. These providers include online startup businesses and corporations, but also practitioners like the limited license legal technicians recently authorized in the state of Washington. The heart of the debate was over whether by adopting the resolution the House was endorsing the practice of law by nonlawyers.

The resolution was proposed by the Commission on the Future of Legal Services, a major project of immediate-past ABA president William Hubbard. Commission chair Judy Perry Martinez of New Orleans introduced it with a short speech noting that nontraditional legal services are now a significant economic force, and are already providing services for people of modest means.

A long list of delegates filled out “salmon slips” seeking to speak about the resolution, but House chair Patricia Lee Refo limited debate to two speakers for and two against. Hubbard spoke in favor of the motion, giving a long list of ABA entities and outside legal organizations that supported the motion. He then cited statistics on the “justice gap” and told the audience that nonlawyer providers would continue regardless of what the House did.

“We’re not going to put the Internet back in a bottle,” Hubbard said. “Let’s stand up and lead.”

But opposition also came from many ABA and outside legal entities. One of those opposing the resolution was Marjorie O’Connell, the ABA delegate from the National Conference of Women’s Bar Associations. She said her members were “mad as anything” at the prospect of handing legitimacy to poorly trained practitioners, particularly since so many female lawyers have struggled to be taken seriously.

“We have no patience with the idea of a big corporation coming in and saying, ‘We can for $5 get you a lawyer and get you an answer,’ ” she said. “It’s not informed by an education, by adherence to professional standards.”

A motion to postpone the resolution indefinitely—leaving time for proponents to rewrite it before the ABA Annual Meeting in 2016—failed. A voice vote left Refo in doubt, so she asked delegates to stand and be counted. In the end, 276 delegates opposed postponing and 191 favored it.

The House then considered proposed amendments to the measure. The first was adopted easily, adding language saying that nothing in the resolution abrogates ABA policy on nonlawyer ownership of law firms or other core values.

The second was the subject of more debate. Sharon Stern Gerstman of Buffalo, New York, moved an amendment that urged regulators to require lawyer supervision of nonlawyers providing legal services; require that such practitioners be subject to rules of professional conduct; and require that such practitioners accurately state the scope of services provided. She phrased it as a matter of consumer protection.

Amendment supporter Marshall Wolf of Wolf and Akers in Cleveland said the Section of Family Law would support the resolution only with this amendment, and noted that family attorneys were not represented on the commission despite family law taking up 50 percent of civil dockets.

But speakers against the amendment cautioned that it would have unintended consequences. Andrew Perlman, vice chair of the Commission on the Future of Legal Services, said the amendment could regulate paralegals who are currently not regulated, as well as Washington’s limited license legal technicians and various states’ courthouse navigator programs. Lucian Pera, a past ABA treasurer and partner at Adams and Reese in Memphis, said it would be “the work of months and years” to come up with appropriate model regulations.

The second amendment failed on a voice vote, though there was strong support. The resolution itself then proceeded to a voice vote. The ayes had it.

After Resolution 105 was adopted, ABA President Paulette Brown released the following statement: “The adoption of Resolution 105 is intended to create a framework to guide the courts in the face of the burgeoning access to justice crisis and fast-paced change affecting 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. Moving forward, it allows the assessment of regulations that may develop concerning nontraditional legal service providers. The ABA recognizes the importance of evaluating the changes in delivery of legal services and the need for the ABA to carefully analyze these changes so that the public and the legal profession are protected and lawyers maintain the ability to serve their clients.”