"Where there is no vision, the people perish: but he that keepeth the law, happy is he."
-- Proverbs 29:18, King James Bible (KJV)

Tuesday, February 09, 2016

The Practice of Law, the Bar, the Regulation of Nontraditional Legal Services: Resolution 105 of February, 2016 of the ABA House of Delegates Adopting the ABA Model Regulatory Objectives for the Provision of Legal Services

The monopoly of lawyers on "legal services" is a matter of long standing that is enforced in the United States by "bar associations" of attorneys.

Those particular "bars" are not drinking bars. Rather, a bar association takes its name from a wooden bar in the courtroom that once divided the lawyers from the masses in England in the Middle Ages.

As written at Call to the bar at the Wikipedia:
"The call to the bar is a legal term of art in most common law jurisdictions where persons must be qualified to be allowed to argue in court on behalf of another party, and are then said to have been "called to the bar" or to have received a "call to the bar". "The bar" is now used as collective noun for barristers, but literally referred to the wooden barrier in old courtrooms, which separated the often crowded public area at the rear from the space near the judges reserved for those having business with the Court.

Barristers would sit or stand immediately behind it, facing the judge, and could use it as a table for their briefs. Like many other common law terms, the term originated in England in the Middle Ages, and the call to the bar refers to the summons issued to one found fit to speak at the 'bar' of the royal courts. In time, the English judges allowed only legally qualified men to address them on the law, and later delegated the qualification and admission of barristers to the four Inns of Court. Once an Inn calls one of its members to its bar, they are thereafter a barrister. They may not, however, practice as a barrister until they have completed (or been exempted from) a pupillage. After completing pupillage they are considered to be a practising barrister with a right of audience before all courts.
This limitation from the Middle Ages on who was qualified to address judges in court led to the similar development in the USA that limits "the practice of law" to persons who are licensed to do so by the applicable State "bar" association, which serves as the modern "bar" viz. "economic barrier to entry" to being licensed as an "attorney at law".

This monopolistic licensing of attorneys has been successful historically in promoting the rule of law in America, but has run into problems in our modern technological age, where the traditional scope of "law" has increased dramatically and where many new challenges must be faced.

Various new demands of the digital era have necessarily given rise to what can only be called a large market for "nontraditional legal services" that do not always fit neatly into bar association standards of what constitutes the qualified viz. licensed "practice of law".

As written by Lorelei Baird at the ABA Journal, the ABA House of Delegates has now adopted the ABA House of Delegates Resolution 105, which provides:


RESOLVED, That the American Bar Association adopts the ABA Model Regulatory Objectives for the Provision of Legal Services, dated February, 2016.

ABA Model Regulatory Objectives
for the Provision of Legal Services
A. Protection of the public
B. Advancement of the administration of justice and the rule of law
C. Meaningful access to justice and information about the law, legal issues, and the civil and criminal justice systems
D. Transparency regarding the nature and scope of legal services to be provided, the credentials of those who provide them, and the availability of regulatory protections
E. Delivery of affordable and accessible legal services
F. Efficient, competent, and ethical delivery of legal services
G. Protection of privileged and confidential information
H. Independence of professional judgment
I. Accessible civil remedies for negligence and breach of other duties owed, and disciplinary sanctions for misconduct
J. Diversity and inclusion among legal services providers and freedom from discrimination for those receiving legal services and in the justice system
FURTHER RESOLVED, That the American Bar Association urges that each state’s highest court, and those of each territory and tribe, be guided by the ABA Model Regulatory Objectives for the Provision of Legal Services when they assess the court’s existing regulatory framework and any other regulations they may choose to develop concerning non-traditional legal service providers.
FURTHER RESOLVED, that nothing contained in this Resolution abrogates in any manner existing ABA policy prohibiting non lawyer ownership of law firms or the core values adopted by the House of Delegates in Resolution 10F, adopted on July 11, 2000.
Lorelei Laird quotes ABA President Paulette Brown, who released the following statement after Resolution 105 was adopted:
"The adoption of Resolution 105 is intended to create a framework to guide the courts in the face of the burgeoning access to justice crisis and fast-paced change affecting the delivery of legal services. The ABA Model Regulatory Objectives for the Provision of Legal Services that was adopted provides for the protection of the public, the advancement of the rule of law, the independence of professional judgment and diversity and inclusion among legal services providers as well as freedom from discrimination for those receiving legal services. Moving forward, it allows the assessment of regulations that may develop concerning nontraditional legal service providers. The ABA recognizes the importance of evaluating the changes in delivery of legal services and the need for the ABA to carefully analyze these changes so that the public and the legal profession are protected and lawyers maintain the ability to serve their clients."
This resolution by no means resolves the many questions raised for traditional lawyers by nontraditional legal services, as Lorelei Laird reports in her article in the ABA Journal. Take a look.