Unlocking Legal Regulation
Too many people cannot effectively access our legal system to protect their rights and resolve their disputes. Studies show that Americans seek lawyers for help or consider doing so for only 16 percent of the civil justice situations they encounter, and 76 percent of civil cases in state courts involve at least one party that does not have a lawyer at all. At the same time, restrictive rules prevent lawyers and others from serving clients in new ways. The vast unmet need for legal services undermines public confidence in our legal system.
We cannot continue to expect people to confront legal problems without legal advice. And if we want to make legal services more accessible, we must re-envision how they are delivered. IAALS’ Unlocking Legal Regulation project is about taking a bold step forward and laying the foundation for a consumer-centered regulatory system to ensure a more robust market for high-quality legal services—one that is competitive, broadly accessible, and better meets the needs of the people.
- Support and facilitate efforts to improve the regulation of legal services in the United States, including educating lawyers, courts, and the public on regulatory issues.
- Assess and support pilot projects for risk-based regulation in Utah and other states, including identifying metrics and conducting empirical research to evaluate outcomes.
- Develop a model for a regulatory entity focusing on risk-based regulation of legal services, with the goal of better serving and protecting consumers and having these attributes:
- Clearly articulated policy objectives and regulatory principles that drive governance, including a focus on outcomes and a proactive, preventative approach;
- Regulation of the provision of legal services, rather than only individual lawyers;
- Independence from management and control by those it regulates;
- Capability of operating at scale nationally; and
- State-of-the-art regulatory tools, guided by the assessment, analysis, and mitigation of consumer risk.
We live in a world where solutions are at our fingertips. From banking, to commuting, to buying a house, many innovative companies have emerged in the last decade to serve the needs of consumers, wherever they may be. But not legal needs. Similar companies cannot bring accessible legal solutions to the market because, in most places, today’s regulatory system says that anyone other than a lawyer providing legal services would be engaging in the unauthorized practice of law and subject to penalties—even if the services actually help rather than harm consumers. Such barriers can apply to simply providing legal information or helping create legal documents.
What’s more, in most jurisdictions, current rules prohibit lawyers from sharing their fees with others, which can prevent non-lawyers with innovative access-to-justice solutions from working directly with lawyers to develop them. And although lawyers themselves are regulated, there is no structure in place in any state to authorize entities that want to develop legal service offerings, which bars outside innovators from entering the market and helping to meet consumer needs. By limiting the provision of legal services, this regulatory structure effectively denies access to many consumers, both individuals and businesses.
Eliminating these obstacles is necessary for change, but simply revising rules written for a different era is not enough. We must re-envision how legal services are delivered. We live in a time of unprecedented technological disruption and we must shift our thinking to catch up to the present. Every incentive exists for the creation of new pathways to legal services—demand is enormous, creativity is abundant, and the tools are more sophisticated than ever before—but we must first unlock legal regulation to make it possible.
A new framework is needed to regulate entities providing legal services if we are to expand access, better protect consumers, and respond nimbly to rapid social and technological changes. Through Unlocking Legal Regulation, IAALS will work with others seeking to open doors for lawyers and other service providers to use innovative ways to help more people access our legal system.
As part of this project, IAALS has launched a Knowledge Center to capture the ongoing work and conversations in the realm of legal regulation happening around the country. The Knowledge Center is designed to be an up-to-date resource with current state recommendations, ongoing scholarship, and additional resources for those exploring how unlocking legal regulation can be achieved.
To further the discussion around re-regulation efforts, IAALS and the University of Denver Sturm College of Law will host a three-part speaker series in Spring 2020 regarding the Future of Legal Services. Throughout the series, we will bring together perspectives from the legal profession, academia, and state supreme courts—the regulators of legal services.
- February 26: Patricia Refo, President-Elect of the ABA, the world’s largest organization of lawyers
- March 19: William D. Henderson, one of the most influential thought-leaders in legal education
- April 29: A panel comprising Justice Melissa Hart of Colorado, Justice Deno Himonas from Utah, and Justice Ann A. Scott Timmer from Arizona—three states considering reforms in the delivery of legal services
How people access legal services not only profoundly affects justice, but also has important implications for those who study, teach, or practice law. Join us in this stimulating series of talks about changes that can help us move towards the goal of justice for all.
CLE accreditation is pending and each event is free to attend. More information and registration information available here.
- IAALS Independent Regulator of Legal Services Policy Outline
- August 10, 2019, Testimony to ATILS
- September 23, 2019, Written Comments to ATILS
- Utah Report and Recommendations
- Arizona Task Force on the Delivery of Legal Services Report and Recommendations
- Comment to the D.C. Bar regarding Rule 5.4
- March 12, 2020, Spoken Comment to ATILS