Written Testimony of John S. Skilton,
Chair of the ABA Standing Committee on the Delivery of Legal Services
ABA Commission on Multidisciplinary Practice
August 8, 1999
Goal II of the ABA's mission is "to promote meaningful access to legal representation and the American system of justice for all persons regardless of their economic or social condition." Without minimizing the importance of the Association's other 10 Goals, the Standing Committee on the Delivery of Legal Services suggests that the central and foremost responsibility of the legal profession is to provide access to justice.
The methods people use to gain access are not only wide and varied, but are also not necessarily confined to those methods we, the organized bar, select for them. The paradigm for the delivery of personal legal services has shifted dramatically in recent years. In many jurisdictions, the most common method of divorcing is without a lawyer. More people are willfully proceeding pro se than at any time in recent history.
Pro se litigation demands sources of information, delivered in ways outside of the traditional law practice. Legal workshops, hotlines and Internet-based response mechanisms are almost certain to play an increasing role in the delivery of legal information that will be used by pro se litigants pursuing the affordable resolution of their legal disputes.
It is critical for the legal profession to not only understand the changes taking place in the demands for the delivery of personal legal services, but it is essential for lawyers to be meaningfully involved in new and different methods of delivery designed to meet the needs of that consumer demand. To do otherwise, we abrogate our obligation to provide counsel to those who are less capable of doing so, and, consequently, we disserve the public.
The rules of professional responsibility must facilitate the profession's obligation to provide access and not serve as barriers. Therefore, the Standing Committee on the Delivery of Legal Services strongly supports the first principle in the recommendations of the Commission on Multidisciplinary Practice, noting, in particular, that the legal profession "should not permit existing rules to unnecessarily inhibit the development of new structures for the more effective delivery of services and better public access to the legal system."
The prohibition against sharing fees for legal services with lay persons can clearly serve as an obstacle to the delivery of legal services. We think it is important to note that in practical application the rule has been regularly set aside. When lawyers began to accept credit cards for payment, the ethics opinions concluded that, even though the system created a division of fees between banks and lawyers, no threat to the underlying principle of independence of professional judgment resulted. The fee sharing was deemed acceptable. Likewise, when lawyers began providing legal information through fee-based telephone hotlines, they sometimes charged by the minute. This creates a fee sharing arrangement with the telephone company, but falls short of impinging on the real issues. Ethics opinions have found these arrangement acceptable. Non-profit lawyer referral services typically require participating lawyers to divide fees that result from the representation of clients referred by the services. Prepaid legal services split fees between the service plan administrators, who are frequently lay persons, and the lawyers who provide the legal services. In these latter situations, we have carved out exceptions in our rules to facilitate fuller access to legal services.
Nevertheless, the existence of the rule imposing limits on fee sharing of legal services with lay persons has a chilling effect on those who are not prepared to carve out their own exception. By its very nature, such a rule limits the creativity of innovative legal service providers and prevents the institutionalization of methodologies we have not yet considered.
Therefore, the Standing Committee on the Delivery of Legal Services also supports the recommendation of the Commission on Multidisciplinary Practice to permit the sharing of legal fees with lay persons, subject to the preservation of core values of the legal profession.
John S. Skilton, Chair