As reported here yesterday, the American Bar Association House of Delegates voted to approve a resolution calling on states to consider innovative approaches to the access-to-justice crisis, including consideration of regulatory innovations that could improve the accessibility, affordability and quality of civil legal services.

But some were critical of the final version of the resolution (Resolution 115) because of a last-minute revision that added a fourth clause that said, “[N]othing in this Resolution should be construed as altering any of the ABA Model Rules of Professional Conduct, including Rule 5.4, as they relate to nonlawyer ownership of law firms, the unauthorized practice of law, or any other subject.”

One ABA insider described this as having “defanged” the original resolution and intended to appease delegates who see the potential for private investment in law practice as a threat.

But others say the changes were simply intended to clarify what was already true, which is that the resolution was not meant to be an amendment of the Model Rules.

“This was an attempt to address the concerns that we were hearing that the resolution was recommending a change to the Model Rules,” Andrew M. Perlman, dean of Suffolk Law School and the original chair of the Center for Innovation, told me last night. “That was never our intention. Our intention was to spur states to be thinking about innovations that could improve the affordability, accessibility and quality of legal services.”

Since writing yesterday’s post, I have learned that not only was the resolution revised, but the report that supported the resolution was also substantially revised, most notably to eliminate any reference to Rule 5.4 and to the delivery of legal services by anyone other than a lawyer.

As I wrote in my post yesterday, the original version of the report in support of the resolution, which was signed by Daniel B. Rodriguez, the immediate-past chair of the Center for Innovation and former dean of Northwestern’s Pritzker School of Law, said that the resolution “calls for U.S. jurisdictions to consider regulatory innovations that foster new ways to deliver competent and cost-effective legal services and have the potential to improve the accessibility, affordability, and quality of those services while retaining necessary and appropriate client and public protections.”

A section of that report, titled “Categories of Regulatory Innovation,” described the three broad areas of regulatory reform currently being considered in states such as Arizona, California and Utah:

  • Authorizing and regulating new categories of legal services providers.
  • Experimenting with variations to Rule 5.4, which prohibits lawyers from partnering and sharing fees with those who are not lawyers.
  • New approaches to the unauthorized practice of law.

That version described current efforts around each of these categories and the reasoning behind them, but without taking a position for or against them.

In the revised and final version of the report, which is now signed by Don Bivens, Rodriguez’s successor as chair of the Center for Innovation, that entire section of the report has been cut out, as have been all references to Rule 5.4 and to new categories of legal services providers.

Also eliminated was a section titled, “The Need for Regulatory Innovation,” which stated:

“As noted above, the evidence is clear that existing solutions to the access to justice crisis are insufficient and that we need new ideas, such as regulatory reforms to unlock new delivery models. Although the need for change is compelling, the evidence does not yet support any particular regulatory innovation.”

Several people have told me that the impetus for the changes that resulted in the final version of Resolution 115 was concerns raised by delegates from the New York State Bar Association. The fourth clause was negotiated with them in order to get their support for the resolution.

But Perlman says the addition of the fourth clause in no way undermines the significance of this resolution, which was never meant to be an endorsement of any specific innovations or to amend the Model Rules.

“The significance is that now the ABA is on record as encouraging states to consider regulatory innovations,” Perlman said. “That’s a major statement form the ABA, and it’s a recognition that many states around the country are already doing this — that the train has already left the station.

“My hope,” he continued, “is that this resolution will prompt additional states to start doing what those states have begun to do.”

Photo of Bob Ambrogi Bob Ambrogi

Bob is a lawyer, veteran legal journalist, and award-winning blogger and podcaster. In 2011, he was named to the inaugural Fastcase 50, honoring “the law’s smartest, most courageous innovators, techies, visionaries and leaders.” Earlier in his career, he was editor-in-chief of several legal publications, including The National Law Journal, and editorial director of ALM’s Litigation Services Division.