States Step Forward on 21st Century Practice Issues

21st Century PracticeLast week I highlighted the work of the American Bar Association and two Illinois bar associations to study and educate their boards and members about the myriad of changes affecting the practice of law. As I prepare to give a talk to the National Conference of Bar Presidents about this issue next month, I thought I would take a look around the country and see what organizations in other states have been doing lately to address the challenges of 21st century practice. Here’s a roundup of some significant recent developments.

Future Law Task Forces Lead The Way

In March of this year, the State Bar of Michigan 21st Century Practice Task Force published a report that audaciously questions the paradigms of what has been and is in the legal profession. The Task Force put a lot on the table, identifying five key problems: 1) a dysfunctional legal marketplace; 2) issues and challenges for both new and experienced lawyers; 3) inefficient and overly complex legal processes; 4) regulatory hurdles; and 5) cultural resistance to innovation. The report goes on to discuss potential strategies for solving these problems. Notably, the report includes a template for use by other bars interested in developing a future law task force.  The template describes steps to lay the groundwork, create a task force, organize its work, come to consensus, and implement recommendations.

The Florida Bar jumped into the ring as well this year, creating a Vision 2016 Commission with a mission to: “look at the current impact, as well as the long-term challenges that the legal profession will face. Th[e] comprehensive study will provide the foundation to “prepare today’s lawyer for tomorrow’s practice.” Areas of study include the licensing of non-lawyers to perform legal tasks, alternative business structures, multijurisdictional practice/reciprocity (internationally as well as in the country), and the uniform bar examination. Keep the Florida Bar on your radar for upcoming reports and articles about these emerging future law issues.

Vermont is in the second phase of a two year project outlined in a September 2015 report from the Vermont Joint Commission on the Future of Legal Services. Responding to a call to action by Chief Justice Paul Reiber, the Vermont Bar Association convened a commission including lawyers, law school faculty, judges, paralegals and technology specialists to: “identify the problems facing Vermonters and affecting the delivery of legal services to all in the twenty-first century and to propose ideas, points for continuing conversation, and potential solutions.” Similar to other future-focused organizations, the Vermont Joint Commission highlighted the changes prevalent in the field, including globalization, technology, and security. The Joint Commission conducted its work and prepared recommendations through four committees: legal education, court process, legal services, and technology. The strongest recommendation from the Legal Education Committee was to adopt a paralegal licensing program, providing an expanded role for paralegals that would give the public greater access and allow attorneys to focus on more complicated issues.  The recommendations of all of the committees are under additional scrutiny in phase two, as the Commission seeks to develop, refine, and implement them.

About a year ago, the Futures Commission of the Utah State Bar issued a report with five general recommendations supported by clearly articulated reasons:

  1. Make lawyers more available and much more accessible;
  2. Better educate and train lawyers and law students about their business;
  3. Keep improving judicial case management;
  4. Take control of technology; and
  5. Support reestablishment of the court’s access to justice commission.

Quoting Mahatma Gandi who said, “The future depends on what you do today,” Utah’s report urges action items to assure that legal services be provided more efficiently and affordably to Utahns. Noting that there is momentum toward moving some elements of the practice of law to other licensed professionals, the report also beautifully states that much of the work can, and should, be performed only by lawyers:

The practice of law is much more than filling out forms and citing rules. A good lawyer is a problem-solver who has been trained to look deeply at the facts presented and then to help the client avoid the problems later.

Other States’ Responses

Washington State has continued to take bold steps since creating its limited license legal technicians (LLLT’s) in 2012. In 2015, the Washington Supreme Court took another leap forward, entering an order allowing LLLTs to share fees with lawyers (notwithstanding Rule 5.4) and become minor partners in law firms. The LLLTs are specifically prohibited under new Washington Rule of Professional Conduct 5.9 from supervising attorneys or in any way controlling an attorney’s independent professional judgment. This change is modeled off legal reforms that already allow fee-sharing between lawyers and non-lawyers in the United Kingdom and in Australia.

Though no other state has changed regulations to adopt a limited license professional, many states are said to be watching what happens with Washington’s LLLTs. Meanwhile, other states are utilizing people who do not have a juris doctor degree to help under or unserved populations navigate the legal system:

  • Arizona through legal document preparers;
  • California through legal document assistants;
  • New York through courthouse navigators; and
  • Nevada through its document preparation services.

They allow nonlawyers to assist litigants, particularly in domestic relations cases, to demystify legal information and to process and obtain some idea of how to proceed. These non-lawyers give citizens needed assistance that does not require legal advice, effectively bridging the gap between the law and the public.

Although not a new development, readers would be well-advised to know that since 1991, Rule 5.4(b) of the D.C. Bar Rules of Professional Conduct has explicitly allowed non-lawyers and lawyers to practice together in a partnership or other form of organization. As the practice of law involves more areas of expertise outside the substantively legal, ethics opinions continue to be generated. For example, in 2012, the DC Bar wrote an ethics opinion discussing the ethical implications of lawyers in relationship with discovery service vendors owned by non-lawyers.

Though not available online yet, South Carolina will be adding to the discussion of future law issues with its publication of the University of South Carolina School of Law’s Winter 2016 Law Review. The volume includes 16 white papers and an introduction all incorporating the Law Review’s title, “What We Know and Need to Know About the Future of Legal Services.” Stay tuned.

Conclusion: Bars Should Tout Increased And Sustained Engagement

Bar leadership turns over, yet the changes roiling the practice of law continue—even accelerate.  We need to know that the conversations begun today or yesterday will continue and deepen as more lawyers become involved in solving the myriad of issues affecting the profession and potential clients.  There is not a silver bullet panacea.  We must be creative, open to trying solutions for which there is no precedent, and willing to pivot to alternatives when some of new approaches don’t work.  Lawyers have the critical judgment to succeed.  We’ve got this.

 

 

The Commission’s legal intern from Loyola University School of Law, Sarah Patarino, contributed to this post.

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Jayne Reardon
As a prior trial lawyer, Jayne leads lawyers to embrace the transformative possibilities of future law practice. As a prior disciplinary counsel, Jayne is passionate about promoting the core values of the legal profession. She is a graduate of the University of Michigan Law School and the University of Notre Dame. Jayne lives in Park Ridge, Illinois with her husband and those of her four children who are not otherwise living in college towns and beyond.
Jayne Reardon

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