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February 15, 2020

States reimagine lawyer regulation to narrow justice gap

Last summer, the Utah Supreme Court took what many consider a revolutionary step in regulatory legal change. The court unanimously approved a working group report that lays out recommendations for narrowing the access to justice gap by reimagining lawyer regulation.

Phase 1 established a regulatory sandbox, allowing legal entities with consumer-facing innovations to develop new products and offerings and test them while also generating data to guide regulators. Phase 2 calls for creation of “some form of an independent, non-profit regulator with delegated regulatory authority over some or all legal services.”

“I am hopeful in a couple of years we pull the data, and we sit down and collectively decide if this is a good thing,” Utah Supreme Court Justice Constandinos "Deno"" Himonas said Feb. 14 at the American Bar Association Midyear Meeting in Austin, Texas. “Did it help the consumers?”

Himonas joined several other advocates of reform at a program sponsored by the National Conference of Bar Presidents titled, “Disruption in the Profession — Ready or Not, Here We Go!” The bar presidents, as well as bar executive directors, meet concurrently with the ABA Midyear Meeting, which concludes Feb. 17 with the House of Delegates meeting.

Utah is one of at least a half dozen states that are considering regulatory change to relax model rules and other restrictions in hopes of expanding access to justice for low-and middle-income individuals. The ABA House of Delegates, the association’s policymaking body, will consider a resolution that encourages study and consideration of regulatory and other innovations by state and local jurisdictions and calls for an evaluation of the results.

“We have donated billions of dollars of our time in trying to move the needle,” Himonas said of the national pro bono effort by lawyers to close the so-called justice gap. “But what we have to take away from it is we have to recognize we can’t cover across the gap.”

Bob Glaves, executive director of the Chicago Bar Association, explained his group is getting behind the efforts to change the regulatory structure for lawyers because “the status quo is untenable.” He explained that consumers expect to find services online and the legal profession should take the hint.

“We are not making it easy for our profession to reach them by sticking to these things,” he said of consumers.

Lora Livingston, a Civil District Court judge in Austin, likened some of the proposed changes in the legal profession to careers in the medical field where services are provided by physician assistants based on the level of medical need. “I think we should be open to things that work,” she said.

Ellyn Rosen, ABA regulation and global initiatives counsel, described a different regulatory innovation called Proactive Management-Based Regulation (PMBR). The thrust of PMBR, which the ABA adopted policy in support of last year, is to assist lawyers and law firms create ethical infrastructures to lessen the risk of disciplinary and malpractice complaints.

The ABA Standing Committee on Professional Regulation has been studying and educating regulators and the bar about PMBR since 2015. As a result of the efforts, in 2017 Illinois and Colorado adopted PMRB programs.

Other jurisdictions are now considering it. “We are starting to see this catch on,” Rosen said.