A Sign of the Times: ABA Resolution Supporting Regulatory Innovation Among States
The coming year is going to bring landmark changes to regulations governing the legal profession in the United States. As Utah and Arizona continue to move towards actual implementation of new regulatory frameworks for the delivery of legal services, California’s Task Force on Access Through Innovation of Legal Services is recommending significant rule changes and the adoption of a regulatory sandbox styled after Utah’s bold initiative to explore innovation in a safely regulated space. Other efforts are also underway in Chicago, Connecticut, and Washington, D.C. 2020 is shaping up to be the year of regulation reform, and we expect that many more lawyers, judges, journalists, access to justice advocates, and, hopefully, members of the general public will join the conversation.
Indeed, next week the American Bar Association (ABA) kicks off its 2020 Midyear Meeting in Austin, Texas. Among a rich agenda of panels featuring legal industry leaders discussing major issues in civil and criminal justice reform, the ABA Center for Innovation has submitted Resolution 115 for passage by the ABA House of Delegates. Resolution 115 would encourage jurisdictions to consider regulatory innovation as a way to “improve the accessibility, affordability, and quality of civil legal services, while also ensuring necessary and appropriate protections that best serve the public.” If the Resolution passes, the ABA would formally encourage U.S. jurisdictions to consider innovative approaches to increase low- and middle-income Americans’ access to justice and to collect and assess data before and after the adoption of any regulatory innovations.
The Resolution is offered amidst a growing consensus that the status quo is unacceptable. As Jim Sandman recently made crystal clear at this year’s LSC Innovations in Technology Conference, increased funding for civil legal aid or more pro bono work will never close the chasm that is the access to justice gap. The problem grows larger every day, with Americans seeking a lawyer’s assistance for only 16 percent of the civil justice situations they face, and with 76 percent of civil cases in state courts involving at least one party that doesn’t have a lawyer. A report accompanying Resolution 115 states:
“The legal profession cannot solve these problems alone. The public needs innovative models for delivering competent legal services, and such models require the knowledge and expertise of other kinds of professionals, such as technologists and experts in the design of efficient and user-friendly services.”
Arizona, California, New Mexico, Oregon, Utah, and Washington are all cited as states that have recognized the limitations of the current regulatory structure—a structure that prevents involvement of other professionals in delivering high-quality, efficient, and affordable legal services. “[T]hey are working to find ways to revise, rather than eliminate, regulatory structures so that any new services are appropriately regulated in the interests of the public.”
IAALS’ own Unlocking Legal Regulation project reflects this sentiment, embodying the two central principles of IAALS’ work. The first is a user-centered focus on solutions; in order to fix our legal system, we must place clients and people in need of legal services at the center of reform efforts. The second is taking a data-driven approach to developing and testing a model for a regulatory entity focused on risk-based regulation of legal services. The twin goals of this work are to better serve and protect consumers. If it passes, ABA Resolution 115 is a critical step among the legal profession to get us there—although it hasn’t been without opposition.
Contrary to some of the concerns raised, Resolution 115 itself does not specifically address non-attorney ownership recommendations, citing only the importance of considering regulatory innovations broadly. Further, the report accompanying Resolution 115 explicitly cites to the lack of evidence to support any one particular regulatory innovation. Data is a critical part of this conversation (and central to Resolution 115), yet the obvious challenge remains: we cannot collect data on a change that cannot yet be implemented.
Although opponents raise valid questions and concerns about how these types of reforms would operate in practice and whether consumers would face risk of harm, foreclosing the possibility of conversation altogether does not empower stakeholders to fully explore how we might address these persistent issues. We and others are interested in a constructive dialogue with all stakeholders around how to improve the legal system—for the public and attorneys alike. Opening the door for this dialogue is at the heart of Resolution 115.
The Resolution will go before the ABA House of Delegates later this month. Whether or not it is successful, the call to consider innovative approaches to the access to justice crisis has already been heard in states across the country—and many are already moving forward to answer, with or without a formal resolution.
