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More on the Future of Our Profession

This year, after a two-year study, the ABA’s Commission on the Future of Legal Services published its Report on the Future of Legal Services in the United States. The Report summarizes the Commission’s findings and recommendations on how legal services are and will be “delivered and accessed”. It also contains references to the voluminous work done by the Commission in its study.

For those who have kept abreast of the changes occurring in the legal profession – including readers of this column or the 2015 publication of the ABA, The Relevant Lawyer-Reimagining the Future of the Legal Profession, reviewed in the February/March 2016 edition of the CBA Record – the findings and recommendations contain little new. For everyone else, the Report is a wake-up call to where our profession is headed.

The three major findings are: A. “Despite sustained efforts to expand the public’s access to legal services, significant unmet needs persist.” B. “Advancements in technology and other innovations continue to change how legal services can be accessed and delivered.” and C. “Public trust and confidence in obtaining justice and in accessing legal services is compromised by bias, discrimination, complexity, and lack of resources.” The findings emphasize that while many lawyers are underemployed, there are a “vast number of unrepresented parties” whose numbers adversely affect the workings of the court system or who go without necessary legal advice.

While the Findings are fairly precise in describing our existing problems, the Commission’s Recommendations, while laudable, are overly general. For example, Recommendation 1 states; “The legal profession should support the goal of providing some form of effective assistance for essential civil legal needs to all persons otherwise unable to afford a lawyer.” While it is hard to disagree with this concept, the recommendation does not give much guidance on how to meet the goal. Should the profession support on-line legal services or the creation of a class of non-lawyer legal professionals who can provide affordable services to the general public? The Report finesses these issues.

However, guidance can be found elsewhere. In a Resolution adopted on February 8, 2016 the ABA adopted Model Regulatory Objectives for the Provision of Legal Services. The Objectives are broad. For example, “[t]ransparency regarding the nature and scope of legal services to be provided, the credentials of those who provide them, and the availability of regulatory protections[,]” and “[p]rotection of privileged and confidential information.” However, attached to the Resolution is a report setting out the purpose of the Objectives. This report states that the Model Objectives: “will be useful to guide the regulation of an increasingly wide array of already existing and possible future legal services providers. The legal landscape is changing at an unprecedented rate. . . . One source indicates that there are well over a thousand legal tech startup companies currently in existence. Given that these services are already being offered to the public, the Model Regulatory Objectives for the Provision of Legal Services will serve as a useful tool for state supreme courts as they consider how to respond to these changes.”

The Commission’s Findings and Recommendations, the ABA’s adoption of Model Regulatory Objectives, the number of products and services already being offered to the public – these all indicate that market forces are creating providers of legal services who are not licensed attorneys. We all need to recognize this fact and work to assure that the services provided are of a suitable scope and quality.