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Seismic change ripping through legal services regulation in the United States: A thread.
Probably you've heard about the extraordinary July report of the California State Bar's Task Force on Access Through Innovation of Legal Services and its wide-ranging recommendations to allow "non-lawyers" to own law firm equity and deliver legal services. abajournal.com/news/article/c…
The state bar asked for comments on the recommendations and received heavy criticism from lawyers: biglawbusiness.com/california-bar…. I suspect the backlash wasn't all that surprising or enlightening to Bar leaders. The SBC's board of trustees will vote on the recommendations in January.
If you'd like to read the task force's commissioning report, written by @wihender (and I think you should), you can find it here: board.calbar.ca.gov/docs/agendaIte… I personally think it should be mandatory reading for every law student, and hopefully, it eventually will be.
But it ain't just California. The State Bar of Arizona's Task Force on Delivery of Legal Services recently voted to recommend expanding the roles and powers of "non-lawyer" legal document preparers in the state. Nothing especially exciting about that.
But it also voted to recommend scrapping Rule 5.4 (prohibiting "non-lawyers" from taking equity in law firms or sharing fees with lawyers) and to allow Ls and NLs to form "alternative business structures": biglawbusiness.com/arizona-weighs…. The task force's final report is due Oct. 1.
And now here comes Utah, where the Supreme Court's Work Group on Regulatory Reform just recommended loosening rules on UPL, fee-sharing and lawyer advertising, and the creation of a "regulatory sandbox" to allow experiments with NL investment in law firms: abajournal.com/news/article/n…
If you're wondering what a "legal sandbox" might be, this @JohnAFlood post on the subject will be helpful (including some intriguing ideas about applying this model to legal education, but that's another thread): johnflood.blogspot.com/2019/08/time-f…
I think these are all momentous occurrences, and support for that idea comes from England & Wales, current holder of the "world's legal laboratory" title that seems about to pass into the hands of the American west.
.@CrispinPassmore writes about the importance of these developments, and even suggests if that all these proposed reforms actually come to pass, the UK will end up playing regulatory catch-up with the US: passmoreconsulting.co.uk/utah-turns-us-…
(Not that the UK has it all figured out yet, either. For an important insight into the future of legal services regulation reform in that jurisdiction, read this report on the message delivered earlier this year by @StephenMayson: legalfutures.co.uk/latest-news/ma…)
And the seismic waves are spreading. Here in Canada, Nova Scotia has been at the forefront of legal services reform, and this 2017 post suggests that regulatory reform there could enable, among other things, the effective approval of ABS: notjustforlawyers.com/nova-scotias-s…
More broadly, I wrote earlier this year about extraordinary developments in British Columbia, where regulatory reform appears ready to proceed despite the overwhelming opposition of the province's lawyers: slaw.ca/2019/02/08/the…
And if I can be forgiven a couple of other plugs, I think that what I wrote about legal services regulatory reform back in 2012 (law21.ca/2012/02/who-sh…) and 2014 (law21.ca/2014/11/law-fi…) still holds up.
California, Arizona, and Utah are very probably in the process of ending a historic era in legal services regulation in the US and ushering in a new one -- a development with profound implications, mostly (though not entirely) positive. But they're not the first US change agents.
We've already seen incremental steps in this direction in New York (srln.org/node/1320/role…), Illinois (abovethelaw.com/2018/06/an-unl…) and Washington State (legalevolution.org/2019/06/what-i…), among others.
So this feels to me, legitimately, like a tipping point in legal services regulation. I'm really happy it's here. But the thing about tipping points is that everyone loses their balance a little. Maybe even a lot. Things are going to get a little nuts over the next year or two.
So remember the big picture and the two goals that we all need to be working towards, even if they sometimes seem to conflict: preservation of the rule of law, and provision of genuine access to justice. These are our northern stars. Let's keep them in sight at all times. /FIN
