The following contains purely informational, educational, or technical material. The views expressed herein represent the opinions of the author and have not been approved by the ABA House of Delegates or the Board of Governors and, accordingly, should not be construed as representing the position of the association or any of its entities.
American Bar Association President Judy Perry Martinez has drawn the worst duty a bar leader can face. On her watch, the legal profession is confronting unprecedented barriers to its survival and to its capacity for meeting the dual demands of access to justice and protection of the public. If necessity was once called the mother of invention, that expression insufficiently captures these times. It is now more accurate to say that survival is an insatiable despot that demands continuous innovation as its tribute. Continuous innovation is a tall order for any community, let alone one whose most influential institutional representative was founded in 1878.
The ABA has no regulatory authority, but it is a policy influencer. Its role — some say its duty — is to be a thought leader in legal ethics and lawyer regulation through the Model Rules of Professional Conduct, Ethics Opinions, the ABA/Bloomberg Law Manual on Professional Conduct and enforcement tools such as Standards for Imposing Lawyer Sanctions as guidance for regulators. These are ubiquitous among U.S. jurisdictions, all of which have adopted the Model Rules in some form and most of which refer to the Ethics Opinions, Standards and the Lawyers Manual for guidance in regulating their lawyers. Can an institution best known for thoughtful and well-vetted, if ponderously slow, solutions to problems lead the way forward from social and economic crisis?
At the ABA’s February 2020 Midyear Meeting in Austin, Texas, the House of Delegates adopted Resolution 115 – Encouraging Regulatory Innovation. It supports U.S. jurisdictions considering innovative approaches to the access to justice crisis; to consider regulatory innovations that have the potential to improve the accessibility, affordability and quality of civil legal services, while also ensuring protection of the public; and to collect and assess data regarding regulatory innovations both before and after their adoption to ensure that changes are effective in increasing access to legal services and are in the interest of clients and the public. What Resolution 115 does not do is to recommend changes to any of the ABA Model Rules of Professional Conduct, including Rule 5.4, Professional Independence of a Lawyer, and Rule 5.5, The Unauthorized Practice of Law, changes to which could authorize Alternative Business Structures, a concept embraced by jurisdictions such as the U.K. and Australia, but still under intense discussion by the ABA Commission on the Future of Legal Services. Query: While the ABA supports regulatory innovation in concept, does it have the capacity to be a first responder when the legal system is in crisis? In short, can it lead the way to a “new normal” in the wake of COVID-19? Yes, it can. And it has.
The ABA Coronavirus (COVID-19) Task Force is chaired by James Sandman, president emeritus of the Legal Services Corporation. The task force’s mission is to “identify the legal needs arising from the pandemic, make recommendations to address those needs, and help mobilize volunteer lawyers and legal professionals to assist people who need help.” For lawyers, the task force’s website provides practice tools and training on working remotely and on meeting special needs arising from the pandemic, including the lawyers’ own. It includes a link to the ABA Commission on Lawyers Assistance Program, which provides mental health resources for lawyers coping with the pandemic. All the task force’s actions have been timely and innovative. But imbedded in the webpage is evidence of something more: the ABA’s post-Resolution 115 foray into regulatory innovation.
Many graduating law students are struggling with the impact of COVID-19 on the delay or even cancellation of bar examinations, even as the public’s legal needs relating to employment, housing, civil rights and access to government aid are escalating. As states attempted to meet the dual crisis with emergency measures temporarily admitting graduating law students to practice without bar examinations, the measures varied widely in their approach and raised concerns about public protection and unintended consequences. On April 7, 2020, the ABA’s Board of Governors adopted an emergency resolution that not only urged jurisdictions to immediately adopt emergency rules to allow such temporary practice to law grads, but it also provided a policy-based blueprint for such rules and included those from Tennessee and Arizona for guidance. The material is available on the task force’s webpage under the topic, “July 2020 Bar Examination Changes,” which includes a link to the resolution and a comparative chart of rules adopted by the states to date, to be regularly updated.
The ability of the ABA to respond quickly, decisively and collaboratively to catastrophic change has been a function of effective leadership throughout the organization, both members and staff. And it is no coincidence that Judy Perry Martinez served from 2014-16 as the chair of the ABA’s Presidential Commission on the Future of Legal Services and as special adviser to the ABA’s Center for Innovation. The key to teaching an old dog new tricks is knowing the dog very, very well.
Teresa J. Schmid is the director of the American Bar Association’s Center for Professional Responsibility. She is a past executive director for the Oregon State Bar and executive director for the State Bar of Arizona. She is also a past chair of the Los Angeles County Bar Association’s Professional Responsibility and Ethics Committee and a past member of the State Bar of California’s Standing Committee on Professional Responsibility and Conduct.
The Center for Professional Responsibility provides national leadership in developing and interpreting standards and scholarly resources in legal and judicial ethics, professional regulation, professionalism and client protection.