By Danielle Breen
After the California State Bar established the California State Bar Task Force on Access Through Innovation of Legal Services (ATILS), Utah and Arizona created similar task forces to explore ways to close the access to justice gap. Other states such as Oregon and Washington also implemented smaller programs in an attempt to make legal services more accessible to the public. This is an incredibly important topic for law firms, in-house counsel, and the public as a whole to evaluate because more states are likely to experiment with ways to make legal services more attainable.
California formed ATILS in July 2018 to consider closing the justice gap through changing regulations surrounding non-lawyers’ abilities to practice law. ATILS proposed four major changes to regulations of the practice of law: (1) narrowing the restrictions on non-lawyers’ ability to practice law provided they meet certain ethical guidelines; (2) permitting non-lawyers to have financial interests in law firms; and (3) permitting lawyers to share fees with non-lawyers under certain circumstances; and (4) relaxing the regulations surrounding attorney advertising, solicitation, and the duty to provide competent legal services. ATILS’s goal is to close the access to justice gap by encouraging diversity in the legal field and fostering innovation through collaboration between different types of professionals.
ATILS’s proposals recently received public commentary, with over 1,300 individuals submitting their opinions. The public feedback overall is negative. Opposition is particularly strong towards allowing (1) non-lawyers to provide specified legal services; (2) unauthorized practice of law exceptions for entities composed of non-lawyers, lawyers, or a combination of the two; (3) unauthorized practice of law exceptions for entities composed using technology-driven legal services delivery systems; and (4) amendment of the fee sharing rule to expand fee sharing with non-profits and allow non-lawyer ownership.
There is huge pushback on non-lawyers being able to provide legal advice in any capacity. One anonymous California public commentator stated what many other commenters expressed: “Non-lawyers do not operate under the same ethical obligations or with any comparable training/education, and as such, are not obligated or qualified to give competent legal advice. Moreover, an unrestricted non-lawyer giving any kind of erroneous legal advice would undoubtedly harm the public.” Other comments are similarly negative towards the idea of non-lawyers having any financial interest in law firms. Another California public commenter stated, “The fee sharing would only lead to corruption and less access to justice. It will phase out smaller practice in favor of larger venture capital backed firms that will take over the legal industry — thereby diluting talent and eventually increasing the prices as they will create a monopoly.”
The negative commentary begs the question: why do lawyers hate these proposed changes so much? Skepticism with any radical change is normal, and this has been seen across countless industries. Just a few years ago, some would have been horrified at the idea of a pharmacist in a CVS giving you a flu shot, but that is presently the norm. If these proposals are met with open minds, they will largely benefit the legal profession as a whole.
The United Kingdom implemented similar regulations years ago, and the legal economy is growing as a result. Three of the “Big Four” accounting firms have returned to the United Kingdom to take advantage of the United Kingdom’s structure that allows non-lawyer investment in law firms and businesses. LegalZoom moved to the United Kingdom to take advantage of more liberal laws and now operates as a “full-fledged law firm.” The United Kingdom’s Government even recently expended $2.5 million US dollars into a legal tech company to further innovate and create new ideas for the legal sphere.
If the United States would embrace these proposed changes with open arms, it would largely benefit the legal economy in a similar way to the United Kingdom. Allowing non-lawyers to invest in the law firms will attract top technology talent to law firms, leading to more innovations and ways for lawyers to complete work more efficiently. The increased capital will allow law firms to become bolder with the risks they take to innovate, similar to the way Amazon did when the company initially went public. This will largely benefit companies looking to hire outside counsel as costs will drop due to reduced overhead with the help of technology-based solutions. Furthermore, allowing non-lawyers to provide legal advice in a limited capacity will help thousands of Americans get the legal help they desperately need. While small firms may have concerns about losing business, the reality of the matter is that most attorneys are currently cost-prohibitive to many Americans, leaving a market sector small firms cannot tap into. In contrast to attorney rates, Limited Licensed Technicians in Washington State, who can provide limited advice in the area of family law, bill about $100-$150 an hour. Time will only tell what these proposed reforms will look like in practice, but the outlook should be more positive.
Student Bio: Danielle Breen is a second-year law student at Suffolk University Law School. She is currently a Journal of High Technology Law staff member. Danielle holds a Bachelor of Arts in French Language & Literature and a Bachelor of Arts in Sociology from the University of Colorado Boulder.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.