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.