American Bar Association office in Washington, D.C. June 23, 2014. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL. (Diego M. Radzinschi)
After a weekend of vigorous and sometimes contentious debates over whether nonlawyers should be allowed to provide simple legal services, the American Bar Association’s House of Delegates on Monday voted to adopt a resolution that gives states a framework to consider the regulation of “nontraditional legal service providers.”
The resolution, dubbed Resolution 105, aims to address the justice gap by taking the modest step of acknowledging that some states may want to let nonlawyers provide legal services. Its advocates included former ABA president William Hubbard.
Over the weekend, Resolution 105 was the hottest topic of discussion at the ABA’s midyear meetings, and one of the most controversial issues before the ABA in years. David Miranda, the president of the New York State Bar Association, and Miles Winder III, the president of the New Jersey State Bar Association, led a visible fight against the change. (Miranda is a partner at Albany’s Heslin Rothenberg Farley & Mesiti and Winder is a solo practitioner from Bernardsville.)
During a roundtable discussion on Saturday, Miranda said he worried that this resolution could “open the doors to entrepreneurs trying to make money off backs of lawyers who are starving for work.” New Jersey’s Winder expressed concern that the resolution could lead to a two-tier system where nonlawyers serve the poor, while the rich use lawyers.
William Johnston, head of the Delaware Bar Association and a supporter of the resolution, challenged the notion that the proposal would harm the profession.
“I would submit that this is an invalid premise—that this is a zero sum game and that nonlawyers will be taking food out the mouth of lawyers,” said Johnson, a partner at Wilmington’s Young Conaway & Stargatt & Taylor who is chairman-elect of the ABA’s Business Law Section. “There are substantial unmet legal needs that are not being met by members of the organized bar.”
Resolution 105 finally passed on a voice vote Monday afternoon after it was amended to emphasize that the resolution did not overturn existing ABA policies barring nonlawyers from owning law firms and prohibiting lawyers from sharing fees with nonlawyers. A separate amendment aimed at increasing oversight of nonlawyers failed on a voice vote. (The full text of the adopted resolution is available here.)
The resolution was submitted by the Commission on the Future of Legal Services and five other ABA divisions. The 29-member commission was formed in August 2014 by then-incoming ABA president Hubbard, who has been vocal about the need to improve access to justice. Under the leadership of former Northrop Grumman Corp. lawyer Judy Perry Martinez, the commission has explored new ways to improve the delivery of civil legal services to the public, especially to those who can’t afford a lawyer or are confused by the legal system.
Martinez gave an impassioned speech to the delegates ahead of the final vote on Monday, stressing the stakes involved. “Perhaps more than any other moment in the last century, lawyers must show leadership to help close the access to justice gap,” she said. In opposition, Lawrence Fox of Drinker Biddle & Reath compared allowing nonlawyers to provide legal services to the indigent to supplying tainted water to residents of Flint, Michigan.
In addition to the New York and New Jersey bars, opponents included the ABA’s Litigation Section; the division for Solo, Small Firm and General Practice; and the bar associations of Illinois, Nevada and Texas.
Groups that voiced support before the vote included the ABA’s Business Law Section, the Bar Association of San Francisco, and the Washington State Bar Association. (In Washington state, licensed nonlawyers already provide some legal services.)
Linda Klein, the ABA’s president-elect and a partner at Baker Donelson, also supported the resolution. Current president Paulette Brown, a Locke Lord partner, did not take a position.
The New York City Bar Association did not take a position on the resolution, saying that it may need further discussion. But city bar president Debra Raskin made it clear that her group’s view differs from that of the state bar. “The city bar endorses the concept that nonlawyers can play a role in closing the justice gap,” Raskin stated. “We must continue the conversation about how to expand the role of nonlawyers in this country.”
Notably, the Conference of Chief Justices, made up of state court chief justices, implied support for the concept of nonlawyers offering legal services without taking a position. In most states, the chief justices play the leading role in shaping rules governing the practice of law. The conference recommended that its members consider the resolution’s objectives “to help identify and implement regulations related to legal services beyond the traditional regulation of the legal profession.”
Opponents to Resolution 105 had asked the delegates earlier Monday to postpone a vote indefinitely, but that motion was defeated Monday by a vote of 191-276.
Chas Rapenthal, the general counsel of LegalZoom, attended the midyear meeting, although he isn’t an ABA delegate. A leading provider of online legal forms, LegalZoom wants states to ease restrictions on the services that companies such as his can offer. Rapenthal predicted that it will happen, regardless of the ABA’s action.
“I don’t see how you can stop this tidal wave,” he said. “There is a groundswell of consumers demanding what they deserve. They deserve to have a legal representative they can afford.”