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Thursday, January 02, 2020

2020: The Year of Regulatory Reform in Legal Services? (And how the law professiorate might help)

The last eighteen months or so has brought an enormously interesting, and potentially quite impactful, stew of proposed regulatory reforms in the legal services delivery space to the fore.  Efforts in Arizona, California, and Utah have been especially notable, and other states are wading it as well.  The ABA Center for Innovation, whose council I have the privilege of chairing, has proposed a resolution that applauds this process of experimentation, focusing on what it represents for potentially enhancing access to justice, and calls for a greater collection and analysis of evidence of these reforms' impacts.  (Text of the resolution and report here). Moreover, the Institute for the Advancement of the American Legal System (IAALS) has embarked on an ambitious project entitled "Unlocking Legal Regulation," the gist of which is a comprehensive look at the state of legal regulation.

For those new to these developments, here are some valuable resources:

Arizona (full task force report here; news reports here and here).

California (the report by Prof. Bill Henderson of Indiana-Bloomington which started the ball rolling.  summary of recommendations, with relevant links here; news report here)

Utah (full report from working group; news reports here and here). 

Chicago, Illinois (announcement of the task force).

Some general commentary on these developments by Jayne Reardon in Illinois, Andrew Arruda of California, a member of the Cal task force, and Zachariah DeMeola of IAALS.  Also, the Innovation Center has a website detailing the current regulatory landscape.

 

As with any spate of experiments, there will be advances and setbacks.  The legal profession is a profoundly conservative one, and there are myriad headwinds -- some borne of protectionist impulses and strategies, and others of skepticism more well meaning (and thus credible) in its contours -- facing these reform efforts.  Utah is perhaps the furthest along this road, with Arizona coming quickly behind. The California efforts, potentially the most significant, given the state's size, have faced great opposition by lawyers within this state, and it remains to be seen whether some of the tremendous work of the state bar task force will bear fruit in the coming months.  So, in all, 2020 is shaping up to be a most interesting year with regard to fundamental change in how lawyers and legal services are regulated.

Law professors have not typically been at the vanguard of these movements. (With important exceptions, to be sure).  Yet, these reforms are of an enormous potential significance to our graduates, our current students, and therefore to our law schools.  How can we engage in these efforts beyond watching patiently as matters unfold?  A few thoughts:

  • Consider programs and projects which seek to connect the dots between the present structure of legal services regulation and access to justice considerations.  Reform evangelists tout the connection between ambitious changes and enhancing A2J; skeptics insist that these connections are tenuous.  Surely the matter is a complicated one; and, to be sure, we won't truly know these impacts until and insofar as we can develop some natural experiments in the U.S. context and therefore measure impact over time.  Law professors, especially those with expertise in these substantive topics and, as well, good empirical chops, will be in a great position to speak and do scholarship on these issues.  Some of this is already happening. (Check out this program at Arizona, just for example);

 

  • Where law profs have confidence in the value of certain reform proposals -- for example, permitting non-JD holding professionals to provide certain legal services or permitting alternative business structures for law firms in order to raise new sources of capital --, advocate in various fora for the implementation of these reforms.  This could be especially valuable in those states which are currently focused on these reforms and where law profs at state law schools are called upon for their input.  I know, for example, that the deans of the law schools in Utah and Arizona (along with key colleagues have been especially valuable interlocutors in these discussions;

 

  • Build bridges between law schools and their alumni so as to collect good data about lawyer performance and the current state of legal services delivery. Sure, there are omnibus groups, such as IAALS, the ABA Innovation Center, the American Bar Foundation and the like who can and should lead these data collection efforts.  However, law schools can be especially useful to this reform process by sharpening the focus on law school-specific cohorts, surveyed with care and evaluated over time, in order to illuminate the challenges and achievements of these lawyers and how the structure of legal services regulation has impacted their advocacy and counseling work.

There are undoubtedly more bullet points to add here.  My main message is that there is great ferment in the area of legal services reform.  Our colleagues who work on legal ethics/professional responsibility are especially knowledgeable in this space.  But expanding the legal academy's focus outward from there, drawing in colleagues in areas such as administrative law, corporate law, law & technology, empirical legal studies, and state constitutional law (among other areas) would help enhance understanding.  And a fruitful byproduct would be to show how law professors can add value to practice-related debates by their scholarship, their teaching, and their convening skills.

 

Posted by Dan Rodriguez on January 2, 2020 at 01:56 PM in Daniel Rodriguez | Permalink

Comments

Thanks for sharing the thoughts. It is very helpful for me and also informative for all those users who will come to read.

Posted by: Aricleify | Apr 19, 2020 1:41:09 PM

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Posted by: WhatMobile | Apr 8, 2020 6:12:19 AM

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Posted by: London Solicitiors | Mar 20, 2020 3:01:50 PM

Excellent points. There is great momentum for change, and it would be a missed opportunity indeed if our law professors were not a larger part of these discussions and efforts. I would add that IAALS has an online knowledge center at https://iaals.du.edu/knowledge-center that is tracking current trends, task force activity, studies and scholarly work, in addition to data and regulatory reform in England, Australia, and Canada as a resource for anyone who wants to learn more.

Posted by: Zachariah DeMeola | Jan 10, 2020 12:06:37 AM

This is a useful post. The materials from the 5-2019 ABA CPR panel on "Reconsidering Rule 5.4" might also be useful. See https://perma.cc/VM3M-NTH7 (398 pp. pdf), which includes my 2 page resource list also found at http://bit.ly/2SX9waj. Leslie Levin's paper at the 2020 AALS Annual Meeting "Big Questions" panel is also relevant to this post - it asked (in a malpractice insurance context) what factors tend to make reform more likely. Her copanelists - Bill Henderson, Rebecca Sandefur, & Judy Perry Martinez - directly addressed these developments and the "Big Questions" they raise.

Posted by: Laurel Terry | Jan 6, 2020 1:29:32 PM

Dan, this is a really useful summary. I've been away from these changes (and debates) for a few years, so thank you. If -- hypothetically -- people with potentially valuable expertise wanted to get involved in these efforts, what is the best place to start? I'm thinking mainly of social and behavioral scientists who do empirical work on legal systems, regulation, policy change, and the like. As you know very well, the closedness of the legal (and academic-legal) ecosystem can make it difficult to find a good point of entry.

Posted by: Christopher Zorn | Jan 2, 2020 5:00:10 PM

Just correcting my comment:

Should be " blind trust " and not " blind trust -sheep " as written.

Thanks

Posted by: El roam | Jan 2, 2020 4:48:57 PM

Very interesting, very important. Extremely complicated. Just one point right now:

What I miss here, is rather more details or philosophical discussion, why this domain is so conservative by nature. Three important points:

First, the lawyer, is granting sort of " blind trust -sheep " by nature. Second, the job itself, is extremely complicated. Third, very fatal service. The level of service one would get from his lawyer, may seal his fate, and for the rest of his life.

In this regard, the most important one, is the complications. Why ? Suppose so:

That in one judiciary, there is a rate of 90 percent convictions. But, what if theoretically, we could provide the best lawyers or the best representation to each defendant ? Well, one can assume roughly, that rate of convictions would fall to 60 percent roughly ( notwithstanding the issue of guilt or innocence, means, whether the defendant is really guilty or innocent). That is to say:

That the job, represents huge potential gap, between : weak service, mid one, reasonable one, and highly strong one. So, the domain is complicated, and above all in this regard, we can't asses always:

What is reasonable representation, surly in the eyes of one layman. That is to say:

That, the numbers of complaints or harm made by such reforms proposed here, can't really indicated, how significant would be such reform, unless :

It would be evaluated, not by harm and complaints of laymen needing lawyers and helped by non professional service providers, but:

By judges, by real sharks. Very skillful litigators and alike.Each one expert in particular specific domain. For, a layman, wouldn't be able to asses at first place, how successful was or is the service.

For the rest, we won't stay young here no more....

Thanks

Posted by: El roam | Jan 2, 2020 3:59:56 PM

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