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.