To increase access to justice, regulatory innovation should be considered, ABA House says
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The ABA House of Delegates passed a controversial resolution Monday to address the crisis of access to civil justice, encouraging states to adopt regulatory innovations to expand legal services to more Americans.
The House adopted Resolution 115 with broad support, even though it had spurred intense debate during the 2020 ABA Midyear Meeting in Austin, Texas.
The ABA Center for Innovation and four ABA standing committees sponsored the resolution. It encourages U.S. jurisdictions to consider regulatory innovations that expand legal services.
Speaking Monday in support of an amended resolution, Texas Judge Lora Livingston, a member of the ABA Center for Innovation’s governing council, encouraged delegates to adopt it.
“We don’t deny justice on the basis of race, gender or sexual orientation, and we should certainly not deny justice on the basis of poverty or one’s economic status. That’s not justice,” Livingston said.
A report to the House of Delegates said affordable legal assistance in civil cases is often beyond the grasp of many Americans living below the poverty line. Middle-income wage earners also struggle to secure representation in child custody, eviction and foreclosure cases.
Proponents of the access-to-justice movement argue that qualified professionals can provide limited legal services, even if they are not licensed attorneys.
Several states have proposed or created changes that have expanded access, according to the center’s report.
An earlier iteration of the report irked opponents when it cited U.S. Supreme Court Justice Neil M. Gorsuch, who has talked about easing bar rules that prevent lawyers from partnering or sharing fees with nonlawyers.
Several state bar associations were worried that changing rules of professional conduct could compromise a lawyer’s independence or ethics.
But by the time the amended resolution came to the floor Monday afternoon, opposition had faded.
Expressing how the tide had turned, Henry Greenberg, president of the New York State Bar Association, said his association was “full throated” in its opposition but had come around as changes were made to the final resolution and report.
Follow along with the ABA Journal’s coverage of the 2020 ABA Midyear Meeting here.
Resolution 115 “is not just a right thing to do, the moral thing to do—for ourselves, for our clients—but for our profession it’s a smart thing to do,” Greenberg said.
Andrew Perlman, the former chair of the ABA Center for Innovation and dean of Suffolk University Law School, pushed for amendments that would soften opposition and win support for the resolution. Over the weekend, proponents added language to the resolution to make clear that it would not alter any of the ABA Model Rules of Professional Conduct.
The ABA Center for Innovation also removed several passages from the report, excising language related to nonlawyer partnerships and nonlicensed attorneys.
Perlman said the resolution was not an endorsement of any one approach. Rather, it only asks states to pursue regulatory innovations to close the so-called access-to-justice gap.
“Some view this as a camel’s nose under the tent,” Perlman said in an interview Friday. “There is no camel, and there is no tent.”
But if bar rules are changed, private equity firms could gain a foothold in the legal profession that hurts smaller firms and solo practices, said Steve Younger, a former president of the New York State Bar Association and a state delegate for New York to the ABA’s House of Delegates.
He said the “watered down” version of the report had allayed fears that the resolution was endorsing nonlawyer ownership.
“If you have nonlawyers owning a law firm, what’s to prevent Walmart from coming into every town in America and start selling wills, selling house closings, and doing the routine things that lawyers have traditionally done in America?” Younger said after a meeting of the Conference of State Delegates at the JW Marriott in downtown Austin.
Eleana Drakatos, president of the Ohio State Bar Association, opposed Resolution 115. In a Jan. 23 letter sent to her association’s members, Drakatos said that while she agreed that more could be done that the association was “vehemently opposed” to nonlawyer partnerships. While Drakatos supported using trained courthouse facilitators, a licensed attorney should always supervise nonlawyers, she wrote.
“Ultimately, we believe that the primary focus of bar associations should be on connecting the underrepresented with attorneys, and in working to overcome the persistent misconception that the average consumer can’t afford to hire a lawyer,” Drakatos wrote in the two-page letter.
Ahead of the vote, the Solo, Small Firm and General Practice Division moved to oppose Resolution 115.
ABA President Judy Perry Martinez spoke at the meeting, citing a passage from the preamble of the ABA’s Model Rules of Professional Conduct that states that lawyers should fight to “ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel.”
“I’m not going to comment on the resolution itself, but that’s pretty potent,” Martinez said.
Updated on Feb. 21 to correct a reference to the standing committees supporting the resolution.
