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The Ecosystem for the Regulation of Legal Services and Increasing Access to Justice
In the United States, legal services are primarily regulated by each state or jurisdiction through rules of professional conduct (which are directed at lawyers) as well as statutes and regulations (which are directed at both lawyers and other providers of law-related services). To date, there is no single resource that identifies which U.S. jurisdictions have adopted regulatory approaches that have the potential to innovate how legal services are delivered. This survey seeks to fill that void.
With regard to rules of professional conduct, every state and the District of Columbia have adopted the American Bar Association’s Model Rules of Professional Conduct, at least in part. This survey identifies six Model Rules that have the potential to spur innovative approaches to legal services delivery, depending on the particular formulation of the rule that a jurisdiction adopts. By way of example, jurisdictions that have adopted Model Rule 1.2(c) permit lawyers to provide limited scope representation (i.e., representing clients for only part of a matter), thus enabling lawyers to develop new, limited services that have the potential to reduce clients’ legal expenses.
In addition to the rules of professional conduct, which only govern lawyers, states also adopt other provisions that relate to the delivery of legal services more generally, such as statutes governing the unauthorized practice of law and rules authorizing the delivery of law-related services by other professionals (e.g., Limited License Legal Technicians in Washington State). The survey identifies many of these provisions, especially those that have the potential to drive innovation in how legal services are delivered to the public. The survey also identifies jurisdictions that are currently considering similar regulatory reforms.
It is important to note that not every variation from the Model Rules is necessarily an “innovation.” Rather, some variations may just offer a slightly different way of stating a given rule or principle. Moreover, some variations from the Model Rule may actually impede innovation rather than fostering it. For example, if a state rejects limited scope representation, lawyers in that state will not have the flexibility to offer limited scope services to their clients.
It is also important to emphasize that the word “innovation” has two different meanings for purposes of this survey. First, there are regulatory changes that address a topic in a novel way and are, accordingly, an “innovation” in the regulation of legal services. Second, there are “innovations” in the actual delivery of legal services that can lead to lower cost legal services and broader access. Not all regulatory innovations lead to innovation in the delivery of legal services. Similarly, not all innovations in the delivery of legal services have their origin in a regulatory innovation. As shown in the below diagram, this survey attempts to catalog the intersection of these two types of innovation, namely those innovations in state regulatory frameworks that are at least plausibly related to, or have the potential to lead to, innovation in the delivery of legal services and increased access to justice.
Overall, the survey reveals that relatively few jurisdictions have adopted regulatory innovations that have the potential to drive meaningful changes to how legal services are delivered. That said, several states over the last few years have begun to adopt or study more significant regulatory reforms. Our hope is that this survey can serve as a continuously updated resource regarding these efforts and related innovations in how legal services are delivered so that information about these developments is more readily available.
We further hope that this survey will be a catalyst for meaningful, empirically grounded research on questions concerning the connection between regulatory innovation and improvement in legal service delivery. In particular, we need more thorough research on the measurable impact of reform on access to justice. A number of prominent social scientists and legal scholars are hard at work at this important project; we hope and expect that this survey will provide data useful to ground additional research, research which promises to help illuminate successes and failures in the regulatory innovation space and, ultimately, to point to fruitful improvements in our justice system.
We welcome feedback on this survey, both in terms of the categories that we have identified as well as regulatory innovations that we have overlooked, especially those that relate to the emergence of new models for delivering legal services to the public.
With regard to rules of professional conduct, the rules in every state and the District of Columbia were compared to the ABA Model Rules in six discrete areas. If the text matches the ABA Model Rules but the numbering is different, it is assigned the label “minor clerical changes.” If a jurisdiction changes the text of the Model Rules, it is noted as a “significant change.” If a state has not adopted a given Model Rule or portion thereof, it is assigned the label “does not have”. Commentary, cases and statutory changes affecting the interpretation of a rule are listed.
State Innovations of Note
Some states have changed their Rules or Professional Conduct or adopted other kinds of regulatory innovations to allow for the expansion of legal services via alternative legal service providers. Examples include:
- Arizona – Exempts certain document preparers from Unauthorized Practice of Law claims. It also allows for court navigators.
- District of Columbia – Allows for a limited form non-lawyer ownership of law firms.
- New York – Allows for court navigators.
- Texas – Exempts self-help books and software from Unauthorized Practice of Law.
- Utah – Created (starting in 2019) Licensed Paralegal Practitioners.
- Washington – Created Limited License Legal Technicians.
Other states are currently reviewing their regulatory frameworks to determine whether they should be revised to encourage additional innovations.
- Arizona – The Arizona Supreme Court issued an order forming the Task Force on Delivery of Legal Services . The Task Force is currently (as of August 2019) reviewing these proposals.
- California – The State Bar of California has formed the Task Force on Access Through Innovation of Legal Services. This task force has proposed new rules on fee-sharing and allowing non-lawyers to practice law. Materials will be posted for public comment here. It is expected a final ruling will be made in December 2019. UPDATE: the ATILS task force as delayed final ruling until March 31, 2020. (Source)
- Florida formed a Special Committee on Technologies Affecting the Practice of Law. This committee has proposed an amendment to Florida Bar Rules that would create Registered Online Service Providers.
- New Mexico – The New Mexico Supreme Court formed a working group to explore Limited License Legal Technicians. The Working Group has been directed to deliver a final report by January 1, 2020.
- Utah – In late 2018, the Utah Supreme Court, at the request of the Utah Bar, ordered the creation of a working group to study the legal regulatory infrastructure in Utah and make recommendations to optimize it for innovation.
ABA Rule 1.2(c) (Limited Scope)
ABA Model Rule 1.2(c) says: “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.” Limited scope representation is seen by some as a way for lawyers to assist people who might not otherwise have representation. Depending on the jurisdiction, limited representation can take the form of ghostwriting documents for pro se individuals, an agreement to represent an individual only in a certain portion of a dispute, among other discrete services. As seen in the below chart, 35.4% of the states have adopted significant changes to Model Rule 1.2(c).
ABA Rule 5.4(a) (Fee-sharing)
In most jurisdictions, the rule analogous to ABA Model Rule 5.4 is titled “Professional Independence of a Lawyer.” This rule prohibits the sharing of lawyer fees with non-attorneys. Many of the changes and exceptions made to this rule are for lawyers to be able to pay the estate of a deceased attorney if the deceased attorney contributed to the client work in any way. In Washington, however, attorneys are permitted to share fees with the Limited License Legal Technicians (LLLTs). This is codified in Washington Rule of Professional Conduct 5.9.
ABA Rule 5.4(b – d) Non-lawyer ownership
The second half of ABA Model Rule 5.4 is concerned with the ownership of law firms and businesses by people who are not lawyers. In some countries, such arrangements are known as Alternative Business Structures (ABS). ABS has been allowed in Australia, the United Kingdom and other nations for several years, but it is generally prohibited in the United States. Washington, D.C. is one notable exception, allowing limited forms of ownership of law firms by people who are not lawyers. Additionally, Washington State allows for Limited Licensed Legal Technicians to have a minority ownership stake in law firms. As seen in the below chart, 47.1% of the states have adopted significant changes to Model Rule 5.4(b – d).
ABA Rule 5.5 (UPL)
Rule 5.5 is titled the “Unauthorized Practice of Law,” but it primarily addresses issues relating to lawyers practicing in states where they are not licensed. With regard to innovations in this area directly affecting lawyers, some states have adopted the ABA’s “Model Court Rule on Provision of Legal Services Following Determination of Major Disaster,” which allows out-of-state lawyers to provide legal services following a disaster.
Rule 5.5 does not address whether other kinds of legal services providers, such as online legal document assembly services, constitute the unauthorized practice of law. Rather, those issues are left to states to regulate outside the rules of professional conduct, such as in statutes or court rules. (The American Bar Association has not defined the practice of law.)
There are two ways in which jurisdictions have liberalized the law in this area that relate to the delivery of legal services by providers other than lawyers. Some states, such as Arizona, California, Nevada, New York and Washington, have expressly authorized new kinds of professionals (e.g., LLLTs and document preparers) to perform actual legal services. Utah is joining them in 2019 with Licensed Paralegal Providers.
The second type of innovation liberalizes unauthorized practice of law provisions to allow for a wider array of legal services providers. For example, in Texas, Title Two, Chapter §81.101(c) provides a carve out for print and electronic self-help tools and specifically grants a waiver to Unauthorized Practice of Law claims as long as the tools state that they are not a replacement for the assistance of an attorney. North Carolina addresses similar issues by statute .
There are two other states that are considering rules and statutes that would affect online legal service providers, and they take very different approaches to the issue. The Tennessee legislature is currently debating a bill that would regulate and strongly restrict the creators of legal software. Washington, on the other hand, is considering a rule that would exempt online legal service providers from unauthorized practice of law claims. As seen in the below chart, 96.1% of the states have adopted significant changes to Model Rule 5.5.
ABA Rule 5.7 (Law Related Services)
Lawyers increasingly deliver a range of law-related services to clients. This rule guide lawyers on when the Rules of Professional Conduct apply to those services. Approximately 30% of jurisdictions have declined to adopt this rule in any format. As seen in the below chart, 13.7% of the states have adopted significant changes to Model Rule 5.7.
ABA Rule 6.5 (Court annexed/Non-profit limited scope)
This rule guides lawyers who provide assistance to clients through limited scope services, clinics or help-desks, such as “Lawyer in the Library” events. This rule relieves the burden of performing conflict checks for these limited service engagements unless lawyers know that their firms are already representing one of the client’s adversaries. As seen in the below chart, 25.5% of the states have adopted significant changes to Model Rule 6.5.
ABA Rule 7.2(b) (Lawyer referral)
The rule affects how lawyers market their services to the public. With limited exceptions, it prohibits lawyers from providing anything of value in exchange for a referral. Florida, Oregon and North Carolina have modified this rule to make it easier for for-profit legal referral services to operate. Illinois is in the process of rule change proposal. As seen in the below chart, 72.5% of the states have adopted significant changes to Model Rule 7.2(b).
Cloud storage of information as well the utilization of cloud-based Software as a Service (SaaS) has become a common business practice for many industries and professions. Given lawyers’ somewhat unique obligations with respect to the maintenance and protection of their clients’ data, many lawyers may not utilize these cutting-edge technologies due to concern over whether doing so will enable them to meet their ethical obligations. In 2017, the American Bar Association issued formal Ethics Opinion 477R to provide guidance to lawyers on transmitting client data over the Internet as well as storing client information in the cloud. Currently, 22 jurisdictions have issued an ethics opinion on a lawyer’s use of cloud computing services in connection with their representation of clients. Given that cloud computing has the capacity to lower costs and increase ease of access by a client to their information, these opinions can lead to increase innovation by lawyers in how they deliver their services.
In 2012, the American Bar Association approved a change to comment 8 of Model Rule 1.1 (Competence). It states: “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology…” (Emphasis added.) This amendment reflected the idea that lawyers must remain competent with regard to technology if they are going to deliver legal services in the way that the public increasingly expects and demands. Approximately two-thirds of states have adopted this or similar language. Two states have mandatory technology continuing legal education.
Contributions to add?
If you know of a regulatory innovation or update to law that should be included in this survey, please fill out the form below.
The ABA Model Rules for Professional Conduct are adopted policy of the American Bar Association. Current state activities documented on this website and the views expressed within have not been approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing policy of the ABA unless expressly noted.
This report was originally published in August of 2019. It is, however, a living document and updates to the law will be noted. Please see the Change Log to track changes.
If you have any questions, please email us at innovationcenter (at) americanbar.org
© 2019 American Bar Association. No claim made to public domain works.