February 17, 2016

ABA policy-making body adopts principles to guide courts in regulating of legal service providers

A divided American Bar Association House of Delegates approved Monday a group of model regulatory objectives for states to use if they choose to develop or expand nontraditional legal services.

The ABA House of Delegates meets at the ABA Midyear Meeting in San Diego

The final vote on Resolution 105 was adopted through a voice vote after a rigorous debate of nearly two hours. While setting out broad principles, such as protection of the public, transparency of services and delivery of affordable and accessible legal services, the proposal was criticized for encouraging delivery of legal services by nonlawyers and companies not guided by principles of the legal profession.

The proposal was one of more than two dozen resolutions approved by the House of Delegates, which determines association-wide policy, at the ABA Midyear Meeting in San Diego. The resolution drew about 45 requests to speak on behalf of the resolution and another 35 against it although most waived the right to speak.

The resolution acknowledges the new developments in the legal marketplace and sets out 10 regulatory principles to guide each state’s highest court as it assesses existing regulatory frameworks and any other regulations related to non-traditional legal service providers.

“We must embrace change in terms of how it will help the public that we are sworn to serve,” said Judy Perry Martinez, who chairs the ABA Commission on the Future of Legal Services. She added the resolution is “neutral” to the concepts of alternative business structures and fee splitting.

The proposal has drawn opposition from a range of state and other bar associations, as well as solo practitioners and small firms which see Internet legal alternatives as competition and services fall short of all ethical considerations. A proposal to reaffirm ABA policy against nonlawyer ownership of law firms was added to the initial proposal, and drew near unanimous support.

David P. Miranda, president of the New York State Bar Association, was the first to speak against the resolution, suggesting it opens “the door to tacit approval” of nonlawyer services. “Resolution 105 is a step backwards,” he said. “The guidelines fail to reaffirm the core principles of our profession.”

The issue pitted former ABA presidents against one another. William C. Hubbard, who established the futures commission during his presidency in 2014-15, spoke for it as did past ABA President Tommy Wells (2008-09). The motion of Wm. T. (Bill) Robinson III (2011-12) to indefinitely table the resolution failed 191-276.

In closing for the proponents of the resolution, former ABA President Robert Grey (2004-05) said the resolution provides a “framework for us to offer guidance for the leadership, development and practice of law in this country for the foreseeable future.”

In other action, the House approved:

  • Resolution 100 encouraging informed and voluntary use of alternative dispute resolution as a means to resolve health-care disputes. The hope is that ADR would help settle disputes and reduce the cost of health care, attributed for about 17 percent of the U.S. economy.

  • Resolution 102 urging legislatures to repeal or amend all statutes criminalizing consensual noncommercial sexual conduct in private and between persons who have the legal capacity to consent. The resolution would not seek repeal of criminal statutes for behavior that is nonconsensual, commercial or public, or that involve individuals who lack the legal capacity to consent.

  • Two resolutions related to diversity and inclusion. Resolution 107 asks state licensing and regulatory authorities that have mandatory or minimum continuing legal education requirements to include, as a separate credit, those programs regarding diversity and inclusion for the legal profession. Resolution 116 urges U.S. public companies to diversify their boards to more closely reflect the diversity of society and the U.S. workforce.

  • Two resolutions dealing with the Uniform Bar Examination, administered by the National Conference of Bar Examiners. Resolution 109 urges bar admission authorities to adopt such an exam in their jurisdictions. Resolution 117 asks these groups to consider the impact on minority applicants in deciding whether to adopt the Uniform Bar Examination.

Watch video of the House debate on Resolution 109.

  • Resolution 110 urging the U.S. Supreme Court to record and make available video recordings of its oral argument.

  • Resolution 115a embracing the Revised Uniform Athletes Agents Act, developed by the National Conference of Commissioners on Uniform State Laws as an appropriate path to follow for those states seeking to adopt laws governing sports agents who seek to represent student athletes.

A list of approved final resolutions, which reflect new ABA policy, can be found here.