Future Law

A Sharpened Call for Attorney Regulatory Reform

attorney regulation Last week I provided a roundup of actions by task forces across the U.S. that are exploring reforms to the regulation of legal services. This week I look at the issue of modernizing attorney regulations through the prism of historic events that are reshaping our lives in 2020.

COVID-19 and the ongoing social unrest following the death of George Floyd have provided disturbing insights into the public’s ability to access our legal institutions and their interest in doing so. The system lawyers built is inadequate, if not irrelevant, to most Americans, many of whom would rather solve their legal problems on their own, if they even choose to pursue a challenge at all.

The COVID-19 pandemic has brought to light weaknesses in our legal and judicial systems, underscoring the urgent need for advancing regulatory reform. Americans are losing their jobs, their homes, and the sense of security that perhaps they once had. And, with the courts closed for months except for emergency matters, people have had no physical way to enforce their rights. There is a backlog in court cases and demand for legal services is pent-up.

If ever the legal profession needed an imperative to reform attorney regulation, we have it now.

A Burgeoning Demand for Service 

The U.S. Bureau of Labor Statistics recently reported a June unemployment rate of 11.1%, accounting for 17.8 million people. Although unemployment fell in May and June, the jobless rate and number of people who are unemployed are up by 7.6% and 12 million respectively since February. As of early June, over 44 million people had filed for unemployment benefits since the coronavirus shutdowns began.

In March, most state or local authorities issued a moratorium on evictions. The federal CARES Act, which was passed in early April, froze evictions for renters in federally subsidized housing. But as the country begins opening up moratoriums are ending. Surveys estimated that in May, nearly one-third of renters failed to pay their landlords on time. Experts predict an unprecedented crush of evictions, taxing our court resources and threatening millions of Americans with homelessness in the coming months and years.

According to a housing pulse survey conducted by the U.S. Census Bureau, nearly one-quarter of Illinois residents and residents nationally said they missed their last rent or mortgage payment or had little to no confidence they would be able to pay on time next month.

Media reports have shown landlords resorting to intimidation tactics for tenants who didn’t pay their rent but couldn’t be evicted. In Chicago, under the new COVID-19 Eviction Protection Ordinance, tenants can temporarily stave off eviction by providing landlords with information about the loss of income or employment. Experts agree that there will be an explosive number of evictions as the effects of the pandemic unfold.

Victims of domestic violence are also suffering disturbing challenges brought about by shelter-in-place orders. Experts are concerned that the stressors of sheltering in place may result in increased incidents of domestic violence and child abuse. The victims are some of the most vulnerable people in society and must be able to protect their rights.

This is a precursor to what is expected to be an explosion in consumer legal problems in the areas of housing and domestic violence, as well as consumer debt and bankruptcy. This should translate to an increase in demand for legal services. However, for consumers to access legal services it’s clear that there must be an option for delivering these services remotely through technology.

To the credit of our courts, they turned on a dime to institute remote hearings after the onset of the pandemic. As Illinois Supreme Court Justice Mary Jane Theis explained in a Reimagining Law interview, we have come to realize that court is a service, not a place. And there is no turning back.

Lawyers too have changed the way they practice to serve clients remotely. As Stephen Mayson pointed out, the pandemic has made clear that 21st-century legal services and dispute resolution will no longer be provided mainly through in-person one-on-one meetings.

Social Unrest Magnifies Lack of Confidence

The protests and demonstrations that began with the death of George Floyd continue to hold a mirror up to our justice system. The image revealed isn’t pretty. A significant number of Americans feel excluded from, even victimized by, the system that lawyers and judges embody.

Now, more than ever, the rule of law matters. As does the ability to rely on basic rights that are enforced by law. Yet studies show that people aren’t turning to lawyers to solve their legal problems or to defend their legal rights in court.

People instead engage in self-help, underscoring a lack of confidence in the rule of law and lawyers’ value to society. A recent report issued by the Institute for the Advancement of the American Legal System (IAALS) reveals interesting data on this point.

  • A majority of participants expressed concerns about the fairness of the current civil process. Many concerns centered on perceptions of systemic racial or gender bias, differential treatment based on financial ability, and judicial biases.
  • Participants reported a high level of interest in learning more about the legal system, particularly information on judicial decision-making, specific case information, court statistics, and useful terminology.

As we have written on this blog before, lawyers must build trust in the justice system. The lack of diverse participation in and support for our legal institutions undermines our legitimacy and compels a critical examination of the rules applicable to those institutions.

The Preamble to the Rules of Professional Conduct acknowledges that lawyers should “further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.”

Attorney Regulation Stands in the Way

A potential cause of this disconnect between people with legal problems and lawyers are rules hampering lawyers’ ability to communicate their value to potential clients. Advertising rules prohibit lawyers from paying for referrals or soliciting clients. Rules prohibit lawyers from sharing fees with allied professionals who could help them serve clients more efficiently. And unauthorized practice of law rules prohibit legal services from being delivered by people or tech companies that are not licensed by the state supreme court where the service is rendered.

As Mayson wrote:

There is something deeply uncomfortable about the current regulatory approach that says, in effect: “Law is too complex for ordinary citizens, and too important to society, to allow anyone other than qualified lawyers to be regulated for its provision.” Even if we continue to stretch the boundaries of what we might mean by ‘lawyer’ in this context, it is still ultimately an exclusionary and protectionist position.

Worse still, that same approach also says: “But if you cannot afford a regulated lawyer, then we are prepared to leave you to your own devices.” At this point, presumably, the law is no longer to be regarded as ‘too complex or too important.’ We are then knowingly driving people into doing nothing, or representing themselves, or having to rely on hard-pressed and precariously funded providers of pro bono or voluntary services, or engaging someone who is not regulated.

Rohan Pavuluri, CEO of Upsolve and a member of the Legal Services Corporation’s Emerging Leaders Council, recently lambasted attorney regulations as promoting racial inequity and guaranteeing that Black Americans don’t have equal opportunities and equal rights under the law.

He says that the high cost of legal education keeps the number of Black attorneys at a low level. Moreover, he writes that unauthorized practice of law rules guarantee that Black people won’t have equal access to our justice system by limiting the supply of helpers available, which drives up the cost of legal assistance.

His assertion that attorney regulations should be reformed to invite new kinds of legal services and providers into the market alongside traditional lawyers is echoed by IAALS. In a recent post, IAALS organizational leaders explained how the reform models in Utah and other states can unlock legal regulations for the benefit of a larger swath of our population.

Prioritizing the Public Interest

As we consider attorney regulation reform, it’s important to remind ourselves of the words of the Preamble. As a self-governed profession, we have “a responsibility to ensure that [our] regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar.”

What does “in the public interest” mean? We have largely focused on protecting consumers from harm caused by incompetent or inappropriate legal services. While that’s important, there is a predicate meaning for “the public interest” that Mayson discussed: the public interest of furthering the rule of law and the administration of justice.

It has come into sharp focus that traditional attorney regulation has primarily centered on protecting existing clients from harm. However, we haven’t been focusing enough, if at all, on furthering the rule of law and the administration of justice.

We can no longer justify attorney regulation fashioned around the perspective of some lawyers and their shrinking client bases. How can we continue to support a regulatory framework that is built around the expectations and practices of a minority group of providers? What about members of the public and potential consumers? And how about the allied professionals who are willing and able to deliver legal services in new and efficient ways?

Leaders from various jurisdictions around the country are reimagining legal services regulation to better serve in the 21st century. Kudos to them. These changes have the potential to revitalize the profession and our society.

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