The adoption of alternative business structures across the USA could be given a major boost this week as the American Bar Association prepares to give it unprecedented support.
The representative body, which lays down model rules which individual states can then adopt, will meet in Texas from today for its midyear meeting – with regulatory changes near the top of its agenda.
A resolution laid down before delegates calls for state regulators and bar associations to explore ‘regulatory innovations’ that can improve the accessibility, affordability and quality of civil legal services.
The motion is careful not to expressly endorse alternative business structures – but makes clear that retaining the status quo is no longer seen as sustainable when more than 80% of Americans are not able to access adequate help when facing critical legal issues. The background paper notes that the USA ranks 103rd out of 126 countries in terms of access to legal services.
The ABA resolution says: ‘The public needs innovative models for delivering competent legal services, and such models require the knowledge and expertise of other kinds of professionals, such as technologists and experts in the design of efficient and user-friendly services.
‘The existing regulatory structure for the legal profession, however, increasingly acts as a barrier to the involvement of other professionals, both within and outside of law firms.’
The US legal profession has been resistant – if not downright hostile – to the idea of non-lawyers owning legal service providers, or authorising new categories of providers to offer certain services.
The ABA has in the past considered and rejected amendments to model rule 5.4 that would have permitted some form of non-lawyer ownership of law firms, primarily arguing that it would jeopardise a lawyer’s professional independence.
But the tide has begun to turn in recent years. In 2014, the ABA task force on the future of legal education concluded that a broader array of professionals should be permitted to deliver legal services. Since then, regulators in Arizona, California, New Mexico, Oregon, Utah and Washington have all proposed or adopted reform.
The ABA resolution says there is insufficient evidence to endorse any particular model, but it notes there is also little evidence of public harm from countries which have allowed some form of ABS, including England and Wales. There is to be no change in the model rules, but in a departure from previous reactionary tones, the resolution concludes by calling for ‘courageous experimentation’.
The House of Delegates is the ABA’s policy-making body. It is scheduled to consider more than 30 proposals, including resolutions related to voting registration, curbing gun violence and lessening the burden of bond after a criminal conviction and before sentencing. The House consists of 596 delegates from state, local and specialty bar associations and meets twice a year at the ABA midyear and annual meetings.