Category Archives: Modernizing Legal Services

Modernizing Legal Services

Bibliography

A full bibliography with hyperlinks for Modernizing Legal Services in Common Law Countries: Will the US Be Left Behind? appears below.

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ABA Commission on Ethics 20/20. “ABA Commission on Ethics 20/20 Will Not Propose Changes to ABA Policy Prohibiting Nonlawyer Ownership of Law Firms.” April 16, 2012. http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/20120416_news_release_re_nonlawyer_ownership_law_firms.authcheckdam.pdf.

—. “Discussion Draft for Comment: Alternative Law Practice Structures.” December 2, 2011. http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/20111202-ethics2020-discussion_draft-alps.authcheckdam.pdf.

—. “Minutes.” February 4, 2010. http://www.americanbar.org/content/dam/aba/migrated/2011_build/ethics_2020/feb_2010_minutes.authcheckdam.pdf.

—. “Minutes.” April 29, 2010. http://www.americanbar.org/content/dam/aba/migrated/2011_build/ethics_2020/apr_2010_minutes.authcheckdam.pdf.

—. “Minutes.” February 10, 2011. http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/20110328_ethics2020_minutes_february_10-11-2011-approved.authcheckdam.pdf.

—. “Minutes.” April 15-16, 2011. http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/20110812_ethics2020_minutes_april_15_16_2011_approved.authcheckdam.pdf.

—. “Minutes.” June 13, 2011. http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/20110812_ethics2020_minutes_june_13_2011_approved.authcheckdam.pdf.

—. “Preliminary Issues Outline.” November 19, 2009. http://www.americanbar.org/content/dam/aba/migrated/ethics2020/outline.authcheckdam.pdf.

—. “Report to the House of Delegates: Resolution 105A.” August, 2012. http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/2012_hod_annual_meeting_105a_filed_may_2012.authcheckdam.pdf.

ABA Commission on Ethics 20/20 Working Group on Alternative Business Structures. “For Comment: Issues Paper Concerning Alternative Business Structures.” April 5, 2011. http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/abs_issues_paper.authcheckdam.pdf.

ABA Commission on the Future of Legal Services, Standing Committee on Professional Discipline, Criminal Justice Section Law Practice Division, Standing Committee on Legal Aid And Indigent Defendants, and Standing Committee on Client Protection. “Report to the House of Delegates (105).” November, 2015. http://www.americanbar.org/content/dam/aba/images/office_president/final_regulatory_objectives_resolution_november_2015.pdf.

ABA Commission on the Future of Legal Services. “For Comment: Issues Paper Regarding Alternative Business Structures.” April 8, 2016. http://www.americanbar.org/content/dam/aba/images/office_president/alternative_business_issues_paper.pdf.

—. “Informational Report to the House of Delegates.” December 2015. http://www.americanbar.org/content/dam/aba/images/office_president/final_hod_informational_report_midyear.pdf.

—. “Issues Paper Concerning New Categories of Legal Services Providers.” October 16, 2015. http://www.americanbar.org/content/dam/aba/images/office_president/delivery_of_legal_services_completed_evaluation.pdf.

—. “Issues Paper Concerning Unregulated LSP Entities.” March 31, 2016. https://www.americanbar.org/content/dam/aba/images/office_president/final_unregulated_lsp_entities_issues_paper.pdf.

—. “Issues Paper on the Future of Legal Services.” November 3, 2014. http://www.americanbar.org/content/dam/aba/images/office_president/issues_paper.pdf.

—. “Report on the Future of Legal Services in the United States.” August, 2016. http://abafuturesreport.com/#1.

ABA Commission on Lawyer Assistance Programs. “Proposed Resolution Regarding Model Regulatory Objectives.” October 28, 2015. http://www.americanbar.org/content/dam/aba/images/office_president/lawyer_assistance_programs.pdf.

—. “Proposed Resolution Regarding Model Regulatory Objectives.” January 11, 2016. http://www.americanbar.org/content/dam/aba/images/office_president/lawyer_assistance_programs_b%20.pdf.

ABA Solo Small Firm and General Practice Division. Memo to ABA Commission on the Future of Legal Services. Undated. http://www.americanbar.org/content/dam/aba/images/office_president/solo_small_firm.pdf.

—. Memo to ABA Commission on the Future of Legal Services. December 30, 2015. http://www.americanbar.org/content/dam/aba/images/office_president/lspcomments_solo_small_firm_and_general_practice_division.pdf.

ABA Standing Committee on the Delivery of Legal Services. “Issues Paper on ‘Unregulated Legal LSP Entities.’” May 2, 2016. https://www.americanbar.org/content/dam/aba/images/office_president/delivery_of_legal_services_unregulated.pdf.

ABA Standing Committee on Ethics and Professional Responsibility. “Formal Opinion 464: Division of Legal Fees With Other Lawyers Who May Lawfully Share Fees with Nonlawyers.” August 19, 2013. http://www.americanbar.org/content/dam/aba/publications/YourABA/fo_464.authcheckdam.pdf.

ABA Standing Committee on Professionalism. “Comment on Issues Paper Concerning Unregulated LSP Entities.” April 28, 2016. https://www.americanbar.org/content/dam/aba/images/office_president/professionalism_standing_committee_unregulated.pdf.

Abbott, Tony, Barbara Bradshaw, Joe Catanzariti, Harold Cottee, Noela L’Estrange, Martyn Hagan,  Philip Selth, and Dudley Stow. “Response to Taskforce Discussion Paper on Business Structures ‘Law Practices.’” Undated. http://web.archive.org/web/20110607140350/https://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(8AB0BDE05570AAD0EF9C283AA8F533E3)~Abbott,+Tony;+Bradshaw,+Barbara;+Catanzariti,+Joe;+Cottee,+Harold;+L+Estrange,+Noela;+Hagan,+Martyn;+Selth,+Philip;+and+Stow,+Dudley+-+Business+Structures.PDF/$file/Abbott,+Tony;+Bradshaw,+Barbara;+Catanzariti,+Joe;+Cottee,+Harold;+L+Estrange,+Noela;+Hagan,+Martyn;+Selth,+Philip;+and+Stow,+Dudley+-+Business+Structures.PDF.

Abdulkadiroglu, Atila, Parag Pathak, and Christopher Walters. “School Vouchers and Student Achievement: First-Year Evidence from the Louisiana Scholarship Program.” School Effectiveness & Inequality Initiative Discussion Paper #2015.06. December, 2015. http://seii.mit.edu/wp-content/uploads/2016/01/SEII-Discussion-Paper-2015.06-Abdulkadiro%C4%9Flu-Pathak-Walters.pdf.

Abel, Richard L. American Lawyers. New York: Oxford University Press, 1989.

—. “United States: The Contradictions of Professionalism.” In Lawyers in Society: The Common Law World, edited by Richard L. Abel and Philip S.C. Lewis, 205-222. Washington DC: Beard Books, 2005.

—. “Why Does the ABA Promulgate Ethical Rules?” Texas Law Review 59 (1981): 639-688.

Adams, Edward S. and John H. Matheson. “Law Firms on the Big Board?: A Proposal for Nonlawyer Investment in Law Firms.” California Law Review 86 (1998): 1-40. http://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1100&context=faculty_articles.

Alternative Business Structures Working Group. “Alternative Business Structures and the Legal Profession in Ontario: A Discussion Paper.” September, 2014. http://www.lsuc.on.ca/uploadedFiles/abs-discussion-paper.pdf.

Ambrogi, Bob. “Perlman: ABA Future Commission Not Out to Regulate ‘Entire Legal Tech Industry.’” Catalyst. April 26, 2016. https://www.catalystsecure.com/blog/2016/04/perlman-aba-future-commission-not-out-to-regulate-entire-legal-tech-industry/.

Ambrogi, Robert. “ABA Future Panel Calls for Broad Changes in Legal Services.” Above the Law. August 8, 2016. http://abovethelaw.com/2016/08/this-week-in-legal-tech-aba-future-panel-calls-for-broad-changes-in-legal-services/.

—. “Washington State Moves Around UPL, Using Legal Technicians to Help Close the Justice Gap.” ABA Journal. January 1, 2015. http://www.abajournal.com/magazine/article/washington_state_moves_around_upl_using_legal_technicians_to_help_close_the/.

American Antitrust Institute. “AAI Says Legal Profession’s Recommendations on Multidisciplinary Practices May Violate Antitrust Laws.” February 8, 2000. http://www.antitrustinstitute.org/content/aai-says-legal-professions-recommendations-multidisciplinary-practices-may-violate-antitrust.

American Bar Association. “Resolution 105 Revised and Amended.” February 2016. http://www.americanbar.org/content/dam/aba/images/abanews/2016mymres/105.pdf.

“America’s Neglected Water Systems Face a Reckoning.” Knowledge@Wharton. June 10, 2015. http://knowledge.wharton.upenn.edu/article/americas-neglected-water-systems-face-a-reckoning/.

American Water Works Association. “Buried No Longer: Confronting America’s Water Infrastructure Challenge.” February 27, 2012. http://www.awwa.org/Portals/0/files/legreg/documents/BuriedNoLonger.pdf.

Andersson, Edward and Richard Wilson. “Globalised Democracy.” In Focus on Citizens: Public Engagement for Better Policy and Services. OECD Studies on Public Engagement, 299-302. Paris: OECD Publishing, 2009. http://www19.iadb.org/intal/intalcdi/pe/2009/03785.pdf.

Andrews, Thomas R. “Nonlawyers in the Business of Law: Does the One Who Has the Gold Really Make the Rules.” The Hastings Law Journal 40 (1989): 577-656.

Arce, Rose. “Does Class Size Matter?” CNN School of Thought. December 6, 2011. http://schoolsofthought.blogs.cnn.com/2011/12/06/does-class-size-matter/.

“Are We Better Off Privatizing Water?” Wall Street Journal. October 8, 2012. https://www.wsj.com/articles/SB10000872396390443816804578002280926253750.

Arnold, Craig Anthony. “Water Privatization Trends in the United States: Human Rights, National Security, and Public Stewardship.” William & Mary Environmental Law and Policy Review 33 (2009): 785-849. http://scholarship.law.wm.edu/wmelpr/vol33/iss3/4/.

Association of Christian Schools International. “Frequently Asked Questions about School Choice.” Accessed March 21, 2017. https://www.acsi.org/legal-legislative-pages/school-choice-pages/frequently-asked-questions-about-school-choice.

Avvo, Inc. “Unregulated Legal Service Provider Entities.” April 28, 2016. https://www.americanbar.org/content/dam/aba/images/office_president/avvo_unregulated.pdf.

Baldwin, Robert, Martin Cave and Martin Lodge. Understanding Regulation: Theory, Strategy and Practice. Toronto: Oxford University Press, 2011. https://webcampus.unamur.be/claroline/backends/download.php?url=L0EuX0Rlc21ldF9fMV9CYWxkd2luXyZhbXA7X2NvX1VuZGVyc3RhbmRpbmdfcmVndWxhdGlvbi0xLnBkZg%3D%3D&cidReset=true&cidReq=ECONM864.

Bardes, ‎Barbara, Mack Shelley, and ‎Steffen Schmidt. American Government and Politics Today: The Essentials 2009 – 2010 Edition. Boston: Wadsworth Cengage Learning, 2010.

Barlow, Maude and Wenonah Hauter. “The Dangerous Return of Water Privatization.” Utne Reader. January/February 2014. http://www.utne.com/politics/water-privatization-zm0z14jfzros?pageid=2#PageContent2.

Barton, Benjamin H. “Do Judges Systematically Favor the Interests of the Legal Profession?” University of Tennessee Legal Studies Research Paper No. 1. October, 2007. http://ssrn.com/abstract=976478.

—. “An Institutional Analysis of Lawyer Regulation: Who Should Control Lawyer Regulation-Courts, Legislatures, or the Market?” Georgia Law Review 37 (2003): 1167-1250.

—. The Lawyer-Judge Bias in the American Legal System. New York: Cambridge University Press 2011.

—. “The Lawyer’s Monopoly—What Goes and What Stays.” Fordham Law Review 82 (2014): 3067-90. http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=5008&context=flr.

—. “Why Do We Regulate Lawyers?: An Economic Analysis of the Justifications for Entry and Conduct Regulation.” Arizona State Law Journal 33 (2001): 429-490.

Batlan, Felice. Women and Justice for the Poor: A History of Legal Aid, 1863-1945. New York: Cambridge University Press, 2015.

Beck, Susan. “Divided ABA Adopts Resolution on Nonlawyer Legal Services.” The American Lawyer. February 8, 2016. http://www.americanlawyer.com/id=1202749202171/Divided-ABA-Adopts-Resolution-on-Nonlawyer-Legal-Services#ixzz3zlhUQwOI.

Bee, Sacramento and Andy Furillo. “California’s Prisons Bursting at Seams and Understaffed.” East Bay Times. November 26, 2005. http://www.eastbaytimes.com/2005/11/26/californias-prisons-bursting-at-seams-and-understaffed/.

Behrens, Mark and Christopher Appel. “Controversial ABA Alternative Business Structures Proposal Stalls…Again.” IADC Committee Newsletter. June, 2016.

Bernabe, Alberto. “ABA Commission on Future of Legal Services issues Its Final Report; I Am Not Particularly Impressed – UPDATED.” Professional Responsibility Blog. August 11, 2016. http://bernabepr.blogspot.fr/2016/08/aba-commission-on-future-of-legal.html.

Betke, Christopher G. “Proposal for ABS.” April 27, 2016. http://www.americanbar.org/content/dam/aba/images/office_president/christopher_g_betke_abs.pdf.

Bindman, Dan. “Cypriot Construction Consultancy Becomes ABS for its International Kudos.” Legal Futures. January 17, 2014. http://www.legalfutures.co.uk/latest-news/cypriot-construction-consultancy-becomes-abs-international-kudos.

Bishop, Todd. “Amazon Board Adds Jamie Gorelick, Former Fannie Mae and DOJ Official.” Geekwire. February 10, 2012. http://www.geekwire.com/2012/amazon-board-adds-fannie-mae-doj-official-jamie-gorelick/.

Black, Julia and Robert Baldwin. “Really Responsive Risk-Based Regulation.” Law & Policy 32 (2010): 181-213. http://ssrn.com/abstract=1571808.

Black, Julia. “Risk-Based Regulation: Choices, Practices and Lessons Being Learnt.” In Risk and Regulatory Policy: Improving the Governance of Risk. OECD, 185-236. Paris: OECD Publishing, 2010. http://dx.doi.org/10.1787/9789264082939-en.

Bourgon, Jocelyne. “Why Should Governments Engage Citizens in Service Delivery and Policy Making?” In Focus on Citizens: Public Engagement for Better Policy and Services, OECD Studies on Public Engagement, 199-205. Paris: OECD Publishing, 2009. http://www19.iadb.org/intal/intalcdi/pe/2009/03785.pdf.

Boyd, Tony. “High Court Judge Warns of Conflicts Facing Listed Law Firms.” Australian Financial Review. February 2, 2016. http://www.afr.com/brand/chanticleer/high-court-judge-warns-of-conflicts-facing-listed-law-firms-20160202-gmjues.

Breyer, Stephen. Breaking the Vicious Circle: Toward Effective Risk Regulation. Cambridge, Massachusetts: Harvard University Press, 1993.

Briton, John. “Between the Idea and the Reality Falls the Shadow.” Paper presented at the fifth bi-annual Australian and New Zealand Legal Ethics Colloquium, Melbourne, Australia, December 3-4, 2015. http://www.monash.edu/__data/assets/pdf_file/0004/374872/Briton-Between-the-Idea-and-the-Reality-Falls-the-Shadow-1.pdf.

—. “Between The Idea And The Reality Falls The Shadow: A Case Study In Lawyer Regulation.” October, 2015. Unpublished paper on file with author.

—. “National Legal Profession Reform and the Regulation of the Future.” Paper presented at the St. Vincents’ 48th Annual Queensland Law Society Symposium, Brisbane, Australia, March 27, 2010. https://www.lsc.qld.gov.au/__data/assets/pdf_file/0015/106080/national-legal-profession-reform-and-the-regulation-of-the-future.pdf.

—. “A Response to the Business Structures Paper of 25 November 2009.” December 15, 2009. http://web.archive.org/web/20110607011704/https://www.ag.gov.au/www/agd/agd.nsf/Page/Consultationsreformsandreviews_NationalLegalProfessionReform-TaskforcePapers-ConsultativeGroupSubmissions.

Broome County Bar Association. “Issues Paper Concerning Unregulated LSP Entities.” June 29, 2016. https://www.americanbar.org/content/dam/aba/images/office_president/broome_county_bar_association.pdf.

Broussard, Meredith. “Why Poor Schools Can’t Win at Standardized Testing.” The Atlantic. July 15, 2014. https://www.theatlantic.com/education/archive/2014/07/why-poor-schools-cant-win-at-standardized-testing/374287/.

Buckley, Neil. Letter to David W. Rivkin. September 23, 2016. http://www.legalservicesboard.org.uk/news_publications/speeches_presentations/2016/20160923_LSB_Letter_Re_Draft_Report_IBA_Pres_Task_Force_Independance_Of_Legal_Prof.pdf.

Camp, Scott D. and Gerald G. Gaes, “Growth and Quality of U.S. Private Prisons: Evidence from a National Survey.” Paper prepared for Federal Bureau of Prisons, Office of Research and Evaluation. September 21, 2001. https://www.bop.gov/resources/research_projects/published_reports/pub_vs_priv/oreprres_note.pdf.

Capitol Broadcasting Company. “Editorial: Embezzlement Charge At Fayetteville Private School Exposes Risks of Voucher Abuse.” WRAL. February 21, 2017. http://www.wral.com/editorial-embezzlement-charge-at-fayetteville-private-school-exposes-risks-of-voucher-abuse/16541678/.

Carey, Kevin. “DeVos and Tax Credit Vouchers: Arizona Shows What Can Go Wrong.” New York Times. March 2, 2017. https://www.nytimes.com/2017/03/02/upshot/arizona-shows-what-can-go-wrong-with-tax-credit-vouchers.html?_r=0.

Carrigan, Christopher. “Captured by Disaster? Reinterpreting Regulatory Behavior in the Shadow of the Gulf Oil Spill.” In Preventing Regulatory Capture: Special Interest Influence and How to Limit It, edited by Daniel Carpenter and David A. Moss, 239-291. New York: Cambridge University Press, 2014.

Carissimo, Justin. “Jeff Sessions Reverses Obama Order to Phase Out Private Prisons.” Independent. February 23, 2017. http://www.independent.co.uk/news/world/americas/jeff-sessions-signals-support-for-private-prisons-a7596661.html.

Carnoy, Martin. “School Vouchers are Not a Proven Strategy for Improving Student Achievement.” Report by the Economic Policy Institute. February 28, 2017. http://www.epi.org/files/pdf/121635.pdf.

Cavicchia, Marilyn. “Which Way Forward?: National Conference of Bar Presidents Discusses Possible Futures for the Profession and for Bar Associations.” Bar Leader 39. March-April 2015. http://www.americanbar.org/publications/bar_leader/2014-15/march-april/which-way-forward-national-conference-bar-presidents-discusses-possible-futures-profession-bar-associations.html.

CBA Legal Futures Initiative. “Futures: Transforming the Delivery of Legal Services in Canada.” August, 2014. http://www.cba.org/CBAMediaLibrary/cba_na/PDFs/CBA%20Legal%20Futures%20PDFS/Futures-Final-eng.pdf.

Center for International Environmental Law. “The Ebb and Flow of the Water Privatization Debate Briefing Paper for the Fourth World Water Forum.” March 2006. http://www.ciel.org/Publications/EbbFlow_Mar06.pdf.

Chambliss, Elizabeth and David B. Wilkins. “A New Framework for Law Firm Discipline.” Georgetown Journal of Legal Ethics 16 (2002): 335-351. http://heinonline.org/HOL/LandingPage?handle=hein.journals/geojlege16&div=18&id=&page=.

Chandler, Mark, Charles J. Kalil, Thomas L. Sager, Brackett B. Denniston III, Robert C. Weber, A. Douglas Melamed, Glenn E. Bost II, Randal S. Milch, and Frank R. Jimenez. “Comments of Nine General Counsel on the ABA Commission on Ethics 20/20’s Discussion Paper on Alternative Law Practice Structures.” February 29, 2012. http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/ethics_20_20_comments/ninegeneralcounselcomments_alpschoiceoflawinitialdraftproposal.authcheckdam.pdf.

Chaserant, Camille and Sophie Harnay, “The Regulation of Quality in the Market for Legal Services: Taking the Heterogeneity of Legal Services Seriously.” The European Journal of Comparative Economics 10 (2013): 267-291. http://eaces.liuc.it/18242979201302/182429792013100208.pdf.

Christensen, Barlow F. “The Unauthorized Practice of Law: Do Good Fences Really Make Good Neighbors—or Even Good Sense?” American Bar Foundation Research Journal 5 (Spring, 1980): 159-216.

Clark, Gerard J. “Internet Wars: The Bar Against the Websites.” Journal of High Technology Law XIII (2013): 247-296. https://www.suffolk.edu/documents/jhtl_publications/CLARKMACRO-FINALFINAL.pdf.

Clearwater, Karen. “President’s Report: The Map Followed…” The Law Society of Manitoba Communiqué 2.0. May, 2015, 1-2. http://www.lawsociety.mb.ca/publications/communique/May%202015.pdf.

Clementi, David. “Consultation Paper on the Review of the Regulatory Framework for Legal Services in England and Wales.” March, 2004. http://webarchive.nationalarchives.gov.uk/+/http://www.legal-services-review.org.uk/content/consult/review.htm.

—. “Review of the Regulatory Framework for Legal Services in England and Wales: Final Report.” December, 2004. http://webarchive.nationalarchives.gov.uk/+/http://www.legal-services-review.org.uk/content/report/report-chap.pdf.

“CMA Final Report: Demand for Better Price and Service Transparency from Law Firms, and Review of Legal Regulation.” Legal Futures. December 15, 2016. http://www.legalfutures.co.uk/latest-news/cma-final-report-demand-better-price-service-transparency-law-firms-review-legal-regulation.

Coglianese, Cary. “Management-Based Regulation: Implications for Public Policy.” In Risk and Regulatory Policy: Improving the Governance of Risk. OECD, 159-183. Paris: OECD Publishing, 2010. http://dx.doi.org/10.1787/9789264082939-en.

Colorado Cross-Disability Coalition. “Comments on Civil Legal Service Providers.” April 24, 2016. https://www.americanbar.org/content/dam/aba/images/office_president/julie_reiskin.pdf.

Colorado Supreme Court Attorney Regulation Advisory Committee Subcommittee on Proactive Management-Based Program. “Meeting Minutes.” October 19, 2016. http://www.coloradosupremecourt.com/PDF/AboutUs/PMBR/PMBP%20Subcommittee%20Minutes%2010-19-16.pdf.

—. “Meeting Minutes.” January 18, 2017. http://www.coloradosupremecourt.us/PDF/AboutUs/PMBR/PMBP%20Subcommittee%20Minutes%201-18-17.pdf.

Columbia Law School Human Rights Institute and Northeastern University School of Law Program on Human Rights and the Global Economy. “Equal Access to Justice: Ensuring Meaningful Access to Counsel in Civil Cases, Including Immigration Proceedings—Response to the Seventh and Ninth Periodic Reports of the United States to the Committee on the Elimination of All Forms of Racial Discrimination.” July, 2014. http://web.law.columbia.edu/sites/default/files/microsites/human-rights-institute/files/equal_access_to_justice_-_cerd_shadow_report.pdf.

Committee on Privatization of Water Services in the United States, National Research Council. Privatization of Water Services in the United States: An Assessment of Issues and Experience. Washington, DC: National Academy Press, 2002. https://doi.org/10.17226/10135.

Committee on Standards in Public Life. “Striking the Balance: Upholding the Seven Principles of Public Life in Regulation.” September, 2016. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/554817/Striking_the_Balance__web__-_v3_220916.pdf.

Competition & Markets Authority. “Legal Services Market Study: Final Report.” December 15, 2016. https://assets.publishing.service.gov.uk/media/58518dc1ed915d0aeb0000a4/legal-services-market-study-final-report.pdf.

Conference of Chief Justices. “Resolution 9: Recommending Consideration of ABA Model Regulatory Objectives for the Provision of Legal Services.” February 3, 2016. http://ccj.ncsc.org/~/media/Microsites/Files/CCJ/Resolutions/02012016-Recommending-Consideration-ABA-Model-Regulatory-Objectives-Provision-Legal-Services.ashx.

“Consultative Group – Summary of Key Issues.” July 23, 2010. http://web.archive.org/web/20110408032839/http://ag.gov.au/www/agd/rwpattach.nsf/VAP/(9A5D88DBA63D32A661E6369859739356)~CG+key+issue+summary+-+as+at+11+August+2010.PDF/$file/CG+key+issue+summary+-+as+at+11+August+2010.PDF.

Cordova-Novion, Cesar and Stéphane Jacobzone. “Strengthening the Institutional Setting for Regulatory Reform: The Experience from OECD Countries.” OECD Working Papers on Public Governance, No. 19. OECD Publishing, 2011. http://dx.doi.org/10.1787/5kgglrpvcpth-en.

Corporate Accountability International. “Public Water Works! The Case for Prioritizing our Most Essential Public Service.” 2012. https://www.stopcorporateabuse.org/sites/default/files/resources/public-water-works.pdf.

Coyle, Jim. “Subcommittee Turns to Proactive Regulation.” Colorado Supreme Court. Winter 2016. http://www.coloradosupremecourt.com/newsletters/winter2016/Subcommittee%20turns%20to%20proactive%20regulation.htm.

Craig, Susanne. “Trump’s Empire: A Maze of Debts and Opaque Ties.” New York Times. August 20, 2016. http://www.nytimes.com/2016/08/21/us/politics/donald-trump-debt.html.

Crews, Clyde Wayne. “Donald Trump Promises to Eliminate Two Regulations for Every One Enacted.” Forbes. November 22, 2016. http://www.forbes.com/sites/waynecrews/2016/11/22/donald-trump-promises-to-eliminate-two-regulations-for-every-one-enacted/#413314902b87.

Cross, Michael. “IBA 2016: Legal Independence in E&W Under Attack.” The Law Society Gazette. September 22, 2016. https://www.lawgazette.co.uk/news/iba-2016-legal-independence-in-eandw-under-attack/5057851.article.

Cross, Robert. “Balancing Regulatory Risk.” Presentation at UCL International Access to Justice Conference, London, England, June 20, 2014. https://research.legalservicesboard.org.uk/wp-content/media/UCL-AtoJ-Conference-presentation-20-June-2014.pdf.

Crouch, Colin. The Knowledge Corrupters: Hidden Consequences of the Financial Takeover of Public Life. Cambridge, UK: Polity Press, 2016.

—. The Strange Non-Death of Neoliberalism. Cambridge, England: Polity Press, 2011.

Curry, Greg and Thompson & Knight, LLP. Untitled and undated. https://www.americanbar.org/content/dam/aba/images/office_president/greg_curry_and_thompson_and_knight_abs.pdf.

“Declaration on Free Access to Law.” Free Access to Law Movement. Last amended 2012. http://www.fatlm.org/declaration/.

Department for Constitutional Affairs. “The Future of Legal Services: Putting Consumers First.” October, 2005. http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/legalsys/folwp.pdf.

Devlin, Richard and Ora Morison. “Access to Justice and the Ethics and Politics of Alternative Business Structures.” The Canadian Bar Review 91 (2012): 483-553. http://ssrn.com/abstract=2437035.

Devlin, Richard F. and Porter Heffernan. “The End(S) Of Self-Regulation?” Alberta Law Review 45 (2008): 169-214. http://ssrn.com/abstract=2101801.

Director General of Fair Trading. “Competition in Professions.” March, 2001. http://webarchive.nationalarchives.gov.uk/20140402142426/http:/www.oft.gov.uk/shared_oft/reports/professional_bodies/oft328.pdf.

“Donald Trump Says 70 Percent of Federal Regulations ‘Can Go.’” The Telegraph. October 7, 2016. http://www.telegraph.co.uk/news/2016/10/07/donald-trump-says-70-percent-of-federal-regulations-can-go/.

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Modernizing Legal Services

Ch 27 Rules for a Flat World (or Regulatory Dystopia)

Rules for a Flat World(or Regulatory Dystopia)

Hadfield is wholly correct in her observation that we desperately need better regulation...However, if regulation is a public service—if it is something that we as a society need and value because it brings economic as well as social value to everyone—then it cannot be financed or developed privately. It must be financed publicly through equitable, progressive revenue sources, and it must be developed by public, democratic processes.

As discussed in part II, the complex regulatory framework for legal services in England & Wales, which has its origins in the fragmentation of the legal services market of those countries, has led to a seemingly novel result: regulatory competition, or competitive regulation. In essence, legal service providers in England and Wales are not necessarily required to work with one regulator—in some contexts, they can select one from a panel of approved regulators.

As novel as the framework in England & Wales may appear, the phenomena of regulatory competition by no means originated there. Corporate law in the United States, and notably the choices available to companies as regards state of incorporation, is an obvious example. More specifically, in the US, a company is not required to incorporate in the state where its principal place of business is located. In this context, corporations can “shop” for the state that offers the rules of corporate governance that they find most amenable for them.

In her book Rules for a Flat World: Why Humans Invented Law and How to Reinvent It For a Complex Global Economy, Gillian Hadfield provides additional examples, both historical and current, such as the international markets of medieval Europe which competed for merchants based upon the quality of their rules and mechanisms for resolving commercial disputes, and the Dubai International Financial Center, which Hadfield describes as the world’s first modern “competitive law zone” created to attract international financial services to Dubai.[1]

On the topic of alternative structures, Hadfield has published a number of ground-breaking and highly compelling pieces. They are essential reading for anyone interested in the topic. As just a brief sampling, in “The Cost of Law: Promoting Access to Justice through the (Un)Corporate Practice of Law”[2] and “Life in the Law-Thick World: The Legal Resource Landscape for Ordinary Americans”[3] (with Jaime Heine), Hadfield uses empirical evidence to demonstrate that there can never be enough pro bono (free) legal work or enough money for legal aid that could even come close to satisfying the huge unmet need for legal services in the US. In doing so, she powerfully brings home the importance as well as the urgency of ending the lawyer monopoly on legal services so that others can try to fill at least some of the unmet need. In “Legal Barriers to Innovation: The Growing Economic Cost of Professional Control Over Corporate Legal Markets,”[4] Hadfield explains how much of legal work is economic activity. As such, she makes clear the importance of the regulation of legal services for the effective functioning of a market economy. In “Legal Infrastructure and the New Economy,”[5] Hadfield provides fascinating and valuable insight on the challenges that companies like Google, Mozilla and Cisco Systems face in obtaining legal services. In doing so, she resoundingly disproves the commonly held assumption that large, well-resourced companies are able to easily meet their needs for legal services.

A Giant Leap

In Rules for a Flat World, Hadfield also discusses alternative structures[6] but most of the book addresses a different topic. She extolls the virtues of regulatory competition. In doing so, she takes a step beyond regulation as we know it. She applauds not just competition among public (or governmental or state) regulators, but also encourages competition among private regulators in a privatized market of regulatory services.

In a nutshell, Hadfield’s explanation is as follows: Mass digitalization has changed how we interact with the world, particularly changing our economic interactions. No longer are they embedded in physical objects or fixed locations: instead, they are disembodied and exist everywhere and nowhere at the same time. Powerful computers can analyze information at very high speed; virtual reality devices allow us to immerse ourselves in places many miles away; the internet of things connects us all in ways of which we are barely aware. This “massive leap” in the complexity of the economy has had an enormous impact on the demand for law, and our “legal infrastructure” is not able to catch up.[7]

There are three different “lenses” Hadfield presents through which we can observe that our existing systems are “bursting at the seams.” The first lens is that of complexity: contracts for seemingly the simplest things, like buying a song or installing a software update, are multiple thousands of densely worded documents that are nearly incomprehensible. Statutes, and the regulations they generate, are often hopelessly complicated. Hadfield cites the example of the Dodd-Frank law, which generated ten thousand pages of regulations, including 46 rules involving four different regulators governing just one type of financial transaction. For Hadfield, the “most dramatic evidence” of complexity lies in the 2008 financial collapse: subprime mortgage agreements and the “fancy financial instruments” created by slicing them up were incomprehensible not only to ordinary people but to sophisticated investors like Warren Buffet.[8]

The second lens is that of cost: lawyers and legal processes often cost far more than the benefit they offer. Further, even if it might be worth it, many people simply don’t have enough money to pay. As a result, in many cases people try to resolve their legal problems without lawyers, or simply give up and forgo their rights.[9]

The third and perhaps, for Hadfield, most important lens is that of quality. She uses this term not only in its traditional sense of how “good” a lawyer’s work is, but also—and especially—in a much broader sense. “Quality” encompasses the growing needs for highly specialized lawyers, for a greater range of types of legal help available on the market (not everyone can afford or wants high-end “BMW” legal services); for lawyers who better understand both the needs of businesses in general and those of global businesses; for lawyers who better understand “how to think about risk;” and for lawyers who know how to calibrate the amount of time and effort they devote to a piece of work to the value the client places on work for the client (“lawyers insist on serving up fine china when a paper cup would do”). Additionally, Hadfield explains that businesses that work across borders are forced to meet their legal needs in a fragmented and often incoherent manner. This is because on an international level, our legal systems don’t offer solutions for those types of businesses.[10]

In sum, the legal system that lawyers built over the past few hundred years has served us immensely well in that it has grounded the “spectacular growth” the advanced world has enjoyed since 1800. Hadfield, however, argues that today it is not enough. The system has too many limits, and it needs to be reinvented to meet the needs of today’s highly complex society.[11]

Why hasn’t our legal system been able to reinvent itself, Hadfield asks: “Why hasn’t our legal infrastructure responded better to the changes in the global economy?”[12] For Hadfield, the reason is that “we rely too much on central planning and not enough on markets” to build the components of our legal infrastructure. Hadfield explains that in the 20th century virtually all industrialized countries—ranging from the far left Soviet Union to far right fascist countries like Germany and Italy and including democratic societies like Britain and the US—were drawn to central planning as the best way to assure that resources were put to the best use. However, by the end of the 20th century, the complexities of the economy placed far too great a burden on anyone who tried to “sit atop the pile and direct from on high.” At this point Hadfield cites the economist F.A. Hayek, considered by many to be a founder of neoliberalism.[13] Hayek argues that the more complex an economy becomes, the less amenable it is to centralized planning. After pointing this out, Hadfield then quickly asserts: “the reason is nonideological and has nothing to do with liberal democracy and the proper role of government in promoting human well-being. It is supremely practical.”[14]

Following Hayek’s “deep insight,” Hadfield argues that “markets,” and not government, are the solution to this problem. This is for three reasons: First, through decentralization markets allow us to give greater discretion in how to solve a problem to those across the globe who are at the “bottom of the pyramid:” They are the ones who are most likely to have the specialized information and expertise required to solve that problem. Second, markets create economic incentives for those people to do their work: to discover and apply information. Third, markets help to manage the “information burdens” of a complex economy because they systematically transmit the information they have: when a competitor in the market succeeds, others learn from them and use it in their own businesses. For these reasons, Hadfield urges, we should “create competitive markets for the production of legal infrastructure.” In doing so, we can harness the power of markets to drive investment and innovation in legal infrastructure research and design. We can also build up specialization in the knowledge of how legal infrastructure works and how it can be made to work better and we can get that information transmitted widely and systematically. No number of expert panels and no number of international agency reports can do that: “If we want smart ideas for how to deliver a stable, productive platform on which to build the more complex relationships of the global economy, we should be finding ways to get markets into the mix.”[15]

For Hadfield, markets are clearly the answer, and just as clearly, governments are not. Governments cannot be “fixed” because the “production” of rules by governments is hamstrung by our “political, bureaucratic and judicial rule production methods.” Those methods promote, as well as thrive, on greater complexity in rule making. However, these “rule-making machines” don’t experience the cost of the complexity they produce. Further, most government agencies don’t face competition. They have little motivation to change how they do things because they won’t go out of business if they don’t. So, the bottom line is that we need the “iPhone for law,” something that hits the sweet spot between increased complexity costs and increased benefits. And the only way to get it is to figure out how to “get more markets into the legal infrastructure business.”[16]

It is at this point that Hadfield takes a giant leap past mere regulatory competition. As the examples described at the beginning of this chapter evidence, there is nothing particularly new about regulatory competition, per se. It has occurred in different contexts, both historically and presently. In most cases, however, the competitors are not private actors, they are public ones. The most salient example is corporate law in the United States. While US companies can chose among the corporate laws of all 50 states as well as the District of Columbia and US territories, in each case the “competitor” for the company’s regulatory “business” is the government of that state/district/territory. That is, it’s a public agency or body of some kind.

Hadfield contends that not only are public rule-making and regulatory bodies hamstrung by their propensity for high levels of complexity resulting in high costs for businesses, but also, and perhaps worse, they lack resources. They do not have the financial, technical, or human resources to develop the completely new “legal infrastructure” that is required to adequately regulate today’s hyper-complex and hyper-connected global economy. Hadfield points in particular to artificial intelligence: “Regulating AIs, almost surely, will require almost as much if not more AI than the AI targets of regulation themselves.” For Hadfield, “our conventional approaches to producing regulation, exclusively through governments and public officials, are increasingly unable to cope with the levels of complexity and scale of some of our new technologies.”[17]

Who does have those resources? Who is able to “cope” with such levels of complexity and scale? Self-regulation is not a better option than the government, Hadfield quickly confirms. Instead, for her, the answer is obvious: it’s the “garage guys.” Reincarnations of Google’s Sergey Brin and Larry Page, who have the technical skills, access to private capital, high appetite for risk, and ability to fail, are required. Private regulators, operating in a “market” for regulation, who are overseen “as necessary” by public regulators are what is needed.[18]

An important element of this proposition, Hadfield emphasizes, is the prospect of profit (or, for the “philanthropically minded,” the prospect of social impact).[19] She explains:

The key to a market-based approach to regulation is to create the potential for innovation and incentives to invest in smarter, more effective, and less expensive systems for meeting regulatory objectives. Private regulators that secure a larger market share and higher profits (or better returns on non-profit goals—the motive animating many nonprofit organizations such as private universities and hospitals) by offering a better regulatory service have powerful incentives to figure out how to achieve regulatory objectives more effectively at lower costs.[20]

In the privatized regulatory world that Hadfield paints, private regulators would receive payment from the users of their private regulatory systems. That is, rather than a government subcontracting regulatory services to a private subcontractor (in the manner of private prisons, for example), instead a government would grant to a private regulator the right to offer private regulatory services, subject to defined rules and objectives. The users—the customers—of those services would pay the private regulator directly in order to have access to them.[21]

England & Wales: Privatized or Independent?

Hadfield offers as an example of regulatory competition among private regulators the regulatory framework for legal services in England & Wales. (This framework is described in detail in chapter 4 of this book). She offers the nine approved regulators as “private nonprofit organizations.” Hadfield explains that each “private” regulator must demonstrate to the LSB (the oversight regulator) that it (the “private” regulator) meets the regulatory objectives set out in the Legal Services Act, and that the LSB monitors the performance of each “private” regulator as well as the legal system as a whole. Hadfield further explains that the LSB can create rules that the “private” regulators must follow, such as setting the maximum penalties that can be imposed, requiring a minimum number of lay persons on their governing bodies and forbidding interference from professional representative bodies/trade associations.[22]

Hadfield lauds the regulatory framework for legal services in England & Wales as a “more intelligent approach to regulation, one focused on innovation, improving quality, and reducing costs.” She states that it puts England & Wales in “a much better position to meet the challenges of building better legal infrastructure for an increasingly complex world.” Most especially, she extols the framework of England & Wales as a “straightforward model for how other countries can keep up.”[23] On these points, Hadfield is convincing.

However, upon reviewing the English/Welsh framework more carefully, the description of “private nonprofit” doesn’t seem to fit. Of the nine approved regulators, five have Royal Charters (the Law Society, the Chartered Institute of Legal Executives, the Chartered Institute of Patent Attorneys, the Chartered Institute of Trade Mark Attorneys, and the Institute of Charted Accountants in England and Wales), one was established by statute (the Council for Licensed Conveyancers), and one is a functionary in the office of the Archbishop of Canterbury (the Master of the Faculties).[24]

The status of Royal Charter is principally reserved for professional institutions and charities that work in the public interest and that demonstrate “pre-eminence, stability and permanence” in their particular field. Organizations subject to Royal Charter may not freely amend their Charter or bylaws; the Charter may be amended only by the Queen in Council and certain amendments to the bylaws must be approved by the Privy Council (made up of all Cabinet Ministers and some junior ministries). In sum, chartered organizations surrender a significant amount of control over their internal affairs.[25]

Further, the Legal Services Act requires all approved regulators (chartered or not) to act in a manner that is “transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed.”[26] While this list of requirements clearly encompasses a large variety of practices and behaviors, what is most relevant for our purposes here is that it operates to require each approved regulator to publicly report on its activities, and notably to publish its annual accounts.

Finally, and perhaps most significantly, the governors of each of the approved regulators (with the possible exceptions of the Costs Lawyer Standards Board and the ecclesiastical Master of the Faculties) are required to act in accordance with “The 7 Principles of Public Life,” issued by the Committee on Standards in Public Life.[27] Previously referred to as the “Nolan Principles,” they apply to “anyone who works as a public office-holder.” The four principles most significant for our purposes read as follows:

Selflessness: Holders of public office should act solely in terms of the public interest;

Integrity: Holders of public office…should not act or take decisions in order to gain financial or other material benefits for themselves, their family or their friends. They must declare and resolve any interests and relationships;

Accountability: Holders of public office are accountable to the public for their decisions and actions and must submit themselves to the scrutiny necessary to ensure this.

Openness: Holders of public office should act and take decisions in an open and transparent manner. Information should not be withheld from the public unless there are clear and lawful reasons for doing so.[28]

Taking all of the above into account, it appears that the approved regulators for legal services in England & Wales are not “private” as we commonly think of that term in the economic marketplace. They are perceived to be serving public functions. They are required to act in the interest of the public as a whole, to the exclusion of any private or personal interest.

It would be more accurate to describe each of these approved regulators as conforming to the OECD’s description of an independent regulator, as explained in chapter 1 of this book. While these regulators have sufficient autonomy to conduct their functions without political interference from the executive or legislature, at the same time their structures facilitate the alignment of their long term strategy and policy goals with the broad strategic national priorities as set by elected representatives in the executive and legislature.[29]

In making the case for truly private regulation, Hadfield holds up the approved regulators of England & Wales as proof that her proposal can and does work. But the “garage guys” that Hadfield calls for in Rules for a Flat World would not be working “solely in terms of the public interest.” How could they be if, as Hadfield recommends, the prospect of profit (or of philanthropic social impact) and other enticements such as the protection of intellectual property, would be “dangled”[30] in front of them? A number of public services have been privatized in the UK in recent years but the regulation of legal services is not one of them.[31]

The US Experience with the Privatization of Public Services

The US has also privatized a number of public services in recent years. Hadfield mentions one in her book, the operation of prisons. She mentions it in passing, stating only that the private contractors operating private prisons were not “effectively” regulated.[32] That leaves much unsaid about the US experience with the privatization of prisons:

The 1970s War on Drugs and harsher sentencing policies, including mandatory minimum sentences, fueled a rapid expansion in our nation’s prison population. Prisons became so overcrowded that you could have said, and some did, that they were “bursting at the seams.”[33] Beginning with the Reagan Administration in the 1980s and then again with the Clinton Administration in the 1990s, the solution for the Federal Bureau of Prisons as well as a number of states was to contract with private companies to provide prison services. From 1999 to 2010, nationwide, in both federal and state prisons, the population of private prisons increased by 80% as compared to just an 18% increase in the prison population overall (private and public).[34] The use of private prisons reached its peak in 2013, when approximately 15 percent of the federal prison population, or nearly 30,000 inmates, were in privately operated prisons.[35]

Proponents of private prisons argued that public prisons had become “outmoded and obsolete.” Governments did not have the resources to renovate existing prisons or to build new ones to accommodate the burgeoning prison population. In addition, unlike public prisons, private prisons would not be “mired” in bureaucracy and red tape. Notably, unlike public agencies, private prison operators can hire and fire without the constraints of civil services, and they can discipline and reassign employees with far greater ease, especially if labor is not unionized. Further, proponents argued that private prisons would be more efficient. This was because public prisons have a monopoly, and as a result they have few incentives to develop more efficient methods or seek greater productivity. In contrast, because private prison operators compete in the private marketplace, they have every reason to seek greater efficiency, else lose money or go out of business. In sum, as regards public prisons, proponents argued that quality is low, prices are high, and supply has not kept up with demand: “Public sector corrections systems are in a state of chronic failure by any measure, and no other politically or economically feasible solution is on the table.”[36]

What was the result of the US’s nearly 40-year experiment with private prisons? In August, 2016, US Department of Justice Deputy Attorney General Sally Yates announced that the Federal Bureau of Prisons would begin to reduce, with the intention of ultimately ending, the use of privately operated prisons.[37] The Department made this decision on the basis of a report issued by the Office of the Inspector General that was highly critical of privately operated prisons.[38] The report found that, as compared to federal public prisons, private prisons do not provide the same level of correctional services, programs, or resources, do not save substantially on costs, and do not maintain the same level of safety and security. Further, Yates noted that private prisons have struggled to replicate the rehabilitative services that public prisons provide: services such as educational programs and job training that are considered essential for reducing recidivism and improving public safety.[39] (In February 2017 new Attorney General Jeff Sessions rescinded Yates’s announcement at the same time that the Trump Administration began enforcing strict immigration policies, including mass detention of undocumented immigrants).[40]

The August 2016 report of the Office of the Inspector General was not by any means the first or the only report highly critical of privately operated prisons. For example, a 2012 report prepared for The Sentencing Project found that there is no evidence that privately operated prisons are more cost effective than publicly operated ones. Complicating cost comparisons, the report explained, was the fact that private prisons tend to cherry pick the less expensive prisoners (low or medium levels of security), leaving the more expensive ones (high security/ high risk) for public prisons. The report also found that there is high staff turnover in private prisons, which was attributed to lower salaries and shorter training periods as compared to public prisons.[41] The report observed that the rate of assaults in private prisons is significantly higher than in public prisons and attributed this fact, at least in part, to high staff turnover. In sum, public prisons were found to be safer as compared to private ones because “privately operated prisons appear to have systemic problems in maintaining secure facilities.”[42] The report also found that many privately operated prisons fail to provide adequate medical care.[43]

The report explains that the operators of private prisons themselves do not hold out greater efficiency as a cornerstone to their business models. At least one private company has described that its potential for growth instead depends upon “factors we cannot control,” such as “crime rates and sentencing patterns in various jurisdictions,…the relaxation of enforcement efforts, leniency in conviction or parole standards and sentencing practices or through the decriminalization of certain activities that are currently proscribed by our criminal laws.” They see their growth—and their profits—as dependent in large part if not in whole upon a greater number of persons entering the incarceration system.[44]

Further, even if a private prison operator might suggest that the number of persons entering the incarceration system is something it cannot control, that hasn’t stopped private operators from trying to influence it. As The Sentencing Project report explains, private prison operators spend heavily on lobbying as well as on campaign contributions to both state and federal candidates. Their efforts have gone toward not only promoting the use of private prisons, but also increasing the nation’s prison population (such as through strict immigration laws), and seeking to block unfavorable bills, such as those that would put private prisons under the jurisdiction of the Freedom of Information Act.[45] Congresswoman Sheila Jackson Lee of Texas sought no fewer than six times to make private prisons subject to the same federal public records laws as public prisons. Private prison operators lobbied strongly against her bill each time. Those in the House of Representatives who opposed Lee argued that such a requirement would set a “dangerous precedent” of applying public record law to private companies, and would raise the cost of private contractors by increasing legal fees and record-keeping staff. Lee’s bill failed each time, with the result that our information about how private prisons are run and what happens inside their walls is still limited.[46]

The problems in the private prisons demonstrate that they do not operate better than government operated ones do. They are not more efficient, and the possibility of profit has not enticed private operators to create better prisons, much less a better system of incarceration. Instead, private prison operators have a highly perverse incentive: to seek to increase the number of incarcerated persons in a country which already has the highest incarceration rate in the world.[47] Private prisons do not operate in the public interest and make no pretense of doing so. They operate exclusively in the interest of their shareholders, and they do so to the detriment of inmates and the public as a whole.[48]

The situation with respect to privatization of another public service, water, is not much different: During most of the 1800s, most of the US population (94%) was supplied primarily by private water companies. However, between 1880 and 1920 the majority of the country’s large cities moved to public systems and the rest of the country followed; By the 1990s, just 15% of the market was supplied by private companies. The shift to public systems was prompted by a number of problems attributed to private companies: the outbreak of diseases due to contaminated water, the inability to fight fires due to low water pressure, and the failure on the part of private companies to supply low-income areas.[49]

Over the course of the 20th century, the country’s mostly public water providers grew to provide potable water to more than 99% of the country. In doing so, however, they failed to adequately maintain their infrastructure, with the result of water main breakage and leakage being common place around the country. There are an estimated 240,000 breaks and an estimated 7 billion gallons in leakage, per year. Due to aging infrastructure, the pipes are literally bursting at the seams. And they are not only bursting, but in some places in the country they carry contaminated water that is poisoning local populations (prominent examples being Flint, Michigan and East Chicago, Indiana).[50] The reason for the failure to maintain the infrastructure is lack of resources. In particular, from 1977 to 2009, federal grants for water and sewer systems fell by 75% (after accounting for inflation). This left the financial burden, estimated to be between $655 billion and $1 trillion to restore the infrastructure nationwide, [51] on the shoulders of local water authorities. They have been reluctant to raise rates, in part for fear of political backlash, and also because, in low income areas, residents can ill-afford to pay.[52]

In some municipalities, the response was to privatize the water system. In the 1990s, many made the switch, including, for example, cities like Atlanta, Indianapolis, and Tampa Bay, and a number of municipalities in states like New Jersey, Pennsylvania, California and Illinois.[53] Proponents of privatization argued that private companies have easier access to capital markets for infrastructure investment and can borrow at better interest rates.[54] In addition, they offer measurable efficiency gains—as much as one-third more.[55] “Profitability dictates that a system be as efficient as possible so that it can be as profitable as possible.” [56] Further, private companies are less bureaucratic and they are “demonstrably ahead of government owned utilities in terms of technology and state-of-the-art practices.”[57] While such technologies may have a higher initial cost, they offer savings, too, it was argued, “which can be shared with customers while improving service and quality.”[58]

What has been the result of the country’s most recent experience with the privatization of water? Between 2002 and 2014, no fewer than 33 municipalities in the US chose to “remunicipalize” their water systems by taking them back under public control.[59] A number of reports explain the reasons for this: Privatization has resulted neither in increased infrastructure investment,[60] nor in increased private financing. Private water companies have instead preferred to use public investment finance (government loans and bonds), which are considered to be less costly than private finance. Further, in lobbying Congress for access to federal funding, private companies have made it more difficult for public systems to access federal funding.[61] Private water companies have not been shown to operate more efficiently than public ones.[62] Also, in many cases privatization has led to increased costs, as a result of profit requirements, dividends, income taxes, executive compensation, and the mere complexities involved in negotiating a privatization and then monitoring it once it’s in place.[63]

Further, there is no evidence that privatization has led to better water quality: Not only do private water companies actively lobby Congress and the Environmental Protection Agency to refrain from adopting higher quality standards,[64] but there are a number of examples where privatized systems (including Atlanta’s and Indianapolis’s) have produced inferior if not contaminated water that has required boiling before use.[65] Additionally, private companies tend to cherry pick the localities they will service, avoiding economically depressed areas where household income is low, where water quality problems are significant, or where repair and maintenance of the infrastructure would be particularly expensive.[66] Finally, private water companies have successfully lobbied against bills that would require them to be more transparent in their operations, notably to require them to submit quarterly and annual reports, to alert users in the event of a request to increase rates, or to provide more information in the event of boil-alert notices.[67]

In sum, there is no evidence that the privatized water systems are superior to public ones and in a number of instances they have proven to be worse.

Let’s look at one more example of the privatization of a public service in the United States: primary and secondary education. For many years, a number of people have argued that many of our country’s public schools are in trouble: they don’t have the resources they need to provide quality education;[68] without competition, they have no incentive to operate efficiently;[69] they aren’t able to innovate (some are even “technologically backward”[70]); they are mired in bureaucracy;[71] their class sizes are too large and their facilities are so overcrowded, they are “bursting at the seams.”[72] In sum, they argue, our public schools are failing.[73]

Several states have responded by creating a voucher system in which parents can use publicly-funded credits to send their children to the private school of their choice. In essence, it is the use of public money to finance private schools. The first modern voucher program was implemented in Milwaukee in 1990; since then approximately 15 states plus the District of Columbia have adopted a school voucher program in some form.

Advocates of school voucher programs argue that they give parents choice about where they send their children to school, and notably they enable students from low-income families to escape “failing” schools.[74] They create needed competition among schools, forcing the “failing” public ones either to improve or close. They increase the quality of public schools as well as increasing the quality of schools available overall.[75] They enable more efficient spending of public money.[76] They enable schools to experiment with innovation.[77]

What is the result of the country’s nearly three decade experiment with school vouchers? A number of studies come to the same conclusions: School voucher programs have limited to no effect on student achievement, and in a number of cases they have had a negative effect.[78] The level of regulatory oversight exercised over a private school did not seem to make a difference because if a school was sanctioned for poor academic performance, performance did not improve.[79] In some areas, student achievement did improve in public schools at the time a voucher program was implemented, but researchers ascribe most if not all of that improvement to increased public accountability measures that were put in place at the same time as the voucher program.[80] In addition, there is no evidence that school voucher programs have led to greater innovation: notably, the vouchers have benefitted many pre-existing religious schools (especially Catholic and also Islamic), some of which had seen dramatic drops in enrollment just prior to the implementation of the program.[81] There is no evidence that any private school, subsequent to entering a voucher program, has developed any curriculum or teaching method that could be described as “innovative” in any effective manner, and there is no convincing evidence that voucher programs have reduced racial segregation in schools.[82] Further, there is no evidence that vouchers have resulted in more “efficient” spending of public funds. There are, however, a number of examples of self-dealing, fraud and embezzlement of public funds by private schools participating in voucher programs.[83]

Finally, private schools that benefit from voucher programs have limited accountability and transparency. Notably, in most cases they are not obliged to disclose the subjects they teach, the experience or qualifications of their teachers, or their students’ performance outcomes (besides the results of an annual standardized test).[84] Most especially, most such schools are not accountable for how they spend public funds, and, in many cases, nor are they required to disclose their accounting or have it subject to audit. Proponents of voucher programs actively lobby against greater accountability and transparency on the grounds that it would re-create the bureaucracy of public schools and restrict them from being “creative in the classroom and more open to trying different approaches.” For them (proponents of voucher programs and other forms of privatization of public education, like charter schools), sole accountability should lie with parents: if they don’t like a school, they can simply remove their child from it.[85]

In sum, there is no evidence that the privatization of public education has been beneficial for American children, and in many cases it has been detrimental.

There is a definite pattern in these examples of privatization of public services. Proponents of privatization in each case complained of the bureaucracy and inefficiency of the government. Because the government had a monopoly, it had no motivation to strive to improve its service. Further, proponents of privatization observed that demand was so great, the service was “bursting at the seams.” Yet, also in each case, they asserted that government did not have the resources to meet the demand. On the other hand, private enterprises did. They had greater access to capital and to expertise. Privatization, it was argued, would result in greater innovation. Freed of bureaucracy and motivated by the possibility of profit, in each case private enterprises would develop innovative services that would better meet the needs of the public (themselves transformed into customers). Faced with competition, they would be forced to operate as efficiently as possible. The end result would—necessarily—be greater innovation and choice, better quality, and greater customer satisfaction.

Except that’s not how it turned out. Not in any case. There is no convincing evidence that the privatization of these public services (prisons, water, schools) has resulted in greater innovation, higher quality, or increased efficiency. There is evidence of service failures. There is evidence of many unsatisfied customers. There is evidence of perverse incentives. There is evidence of fraud, conflicts of interest, and self-dealing. There is evidence not just of lack of accountability and transparency, but of active and strong resistance to both. In each case, there is scant to no evidence that the privatization of the public service has, on the whole, actually benefitted the public.

In Rules for a Flat World, Hadfield states that her proposal to privatize regulation is “not as crazy as it sounds.” She continues, “In fact, there’s a story to be told that this is just the natural next step in the evolution of human systems for managing complexity.”[86] If you consider her proposal in the context of the privatization of other public services, notably of prisons, water and education, then she is right that the privatization of regulation is the “natural next step” in a story of progression towards the privatization of a greater number of public services in the US. But is it a step we want to take?

Clearing Up Confusion and Calling Out Contradictions

It is important not to confuse regulatory competition with the privatization of regulation. As discussed above, regulatory competition has occurred historically and continues to occur today in a number of contexts, including the regulation of legal services in England & Wales. However, in most if not all cases, it occurs among public regulators, all under an obligation to act in the public interest. Hadfield recommends the greater use of regulatory competition, but she goes one giant step further: that such competition should be among private actors, motivated by profit (or, in the event of a nonprofit, by the ability to have a social impact).

It is also important not to confuse alternative structures (the focus of this book in your hands) with the privatization of regulation. Alternative structures, and the larger issue of ending the lawyer monopoly on legal services, relate to private actors already acting in an existing, already long privatized, market for legal services. The argument for alternative structures is an argument to open up that market—already serviced by private actors—to a greater variety of private actors. Alternative structures and ending the lawyer monopoly on legal services are fundamentally about access to justice and equal protection of the law. If lawyers are not able or willing to meet 100% of our country’s needs for legal services, then they need to get out of the way—they need to stop blocking others who would like to step up and try meet some of those unmet needs.

In stark contrast (and with the exception of self-regulation), regulation today concerns nearly exclusively public actors, acting mostly in the absence of any kind of “market” (or, as advocates for the privatization of public services would put it, acting in a near-monopoly situation). Further, the proposal to privatize regulation concerns the regulation of not just legal services, but of potentially anything that is or could be regulated by public bodies today. (The specific examples in Rules for a Flat World relate to contracts, business organizations, employment and consumer law).[87] Hadfield describes her book as bringing out “the critical question of how we build and implement the legal infrastructure we need for a new complex and more inclusive global economy.”[88] Seen from this economy-focused perspective, the privatization of regulation is not fundamentally about access to justice or equal protection of the law, but about facilitating business transactions and maximizing profit.[89]

Hadfield correctly points out that today our public regulatory bodies do not have the resources they need to regulate effectively. But she appears to accept this lack of resources as an immutable fact that she does not question. It is as if their lack of resources has resulted from an act of god—not man, and certainly not from the policies of “small government” and minimal taxation adopted by our elected politicians—it is as if it were something we have no power to change.[90] That is simply not the case. With every election we have the power to change it.

Or, at least, in a democracy, we would. Today many argue that the United States is no longer a democracy. This is in large part, they argue, because of the inordinate power that private companies now have in our political and regulatory processes. [91] A 2014 study conducted by Martin Gilens and Benjamin Page found that Americans do enjoy certain features central to democratic governance, such as regular elections, freedom of speech and association, and a widespread (if contested) franchise. However, on the basis of their empirical research, Gilens and Page conclude that these “features” today do not translate into political power for ordinary American citizens. To the contrary, they found that majorities of ordinary citizens have little influence over the policies that government adopts. Instead, the actual power to shape both political agendas (what issues are considered) as well as policy outcomes (the decisions made with respect to those issues) is nearly entirely controlled by “economic elites” and organized groups representing business interests. They further found that while occasionally the interests of majorities of American citizens and the interests of economic elites and business interests align, this is rarely the case. And when they do not align (which, again, is nearly always), the citizen majority loses.[92]

It is in this context that the proposal to privatize regulation can in fact be seen as a proposal to transfer political processes along with government itself directly to business interests, eliminating the need to bother with the “bureaucratic” (and only ostensibly democratic) institutions of legislatures, executives and courts. Proponents of the proposal would likely object to this depiction, and argue that there is nothing political in the privatization of regulation. But how can that be, when the proposal entails transferring to private business entities, operating for a profit, the power both to make and to enforce rules that govern our society?[93] What is politics and what is government, if not, at their very core, the making and the enforcement of rules that govern our society?[94]

Hadfield argues that “voters” would be protected from bad private regulators because they can (and should) expect governments to exercise sufficient regulatory oversight over private regulators. In fact, the argument goes, this would place voters in an even better position because while it is “demanding” to expect voters to actively evaluate how government regulators are regulating individual businesses, it is “less demanding” to expect voters to merely evaluate how government regulators are regulating how private regulators regulate individual businesses. However, this argument is undermined if not contradicted by other arguments, and notably by one stating that using the vote as means to get government regulators to pay attention to your needs as a voter “is a blunt instrument at best.” It is much better, Hadfield argues, to be able to sue a private regulator when it fails to “fund [its] courts adequately and it takes a year to get a court date,” or “it costs you millions in e-discovery costs to litigate your case.”[95]

If the privatized “court” who is earning a profit from adjudicating your lawsuit isn’t doing a good job, your “better” solution is to instigate a second lawsuit? This time you should sue in front of a public court which is already under-resourced and which will likely be even further starved of resources as a result of privatization?

There are additional contradictions. Hadfield frequently emphasizes the importance of a competitive regulatory market in order for private regulation to work.[96] She states that this will depend upon a “slew of laws:”[97] antitrust to protect against monopolies, financial regulation to assure access to capital, internet rules to assure access to communication infrastructures, etc. In this privatization scenario, it is extremely important for public regulators to oversee private regulators—to assure that private regulators are respecting those laws and are otherwise meeting the targets government has set for them.[98] Hadfield states “relying on market-based private regulators will be only as effective and attractive as the quality of the government oversight of the system. She also states that regulating private regulators will “almost certainly be a new and substantial challenge for governments.”[99] However, governments already don’t have the resources they need to regulate effectively, and this is presented as an immutable fact. Where will governments find the additional resources to effectively regulate private regulators? Hadfield offers scant assurance on this point, stating merely that “there are good reasons to think” that privatized regulation will place lower demands on governments, but only in “several settings,” not all of them.[100] The failure to address this need for additional public oversight and how to fund it is highly troublesome.[101]

The proposal is troubling in another manner. Hadfield argues that in order to induce private companies to make investments in the development of better regulation, their ideas and inventions should be protected. This could be with a patent or copyright, or by allowing the private company to maintain secrecy, further protected by confidentiality agreements and trade secret laws.[102] This element, alone, turns the entire concept of regulation on its head. How can regulation fulfill its very reason of existence—to serve the public interest—if it can be kept secret? If it can be considered to be “private” property protected by intellectual property laws and accessible only to those able to pay the “market” rate to access it? If the owner of the “private” property could be permitted, at its discretion, to keep it secret, with the right to refuse to grant access to any one or more persons at any price? This element flies in the face of the United Nations 2030 Agenda for Sustainable Development, under which the United States has committed, among other things, “to develop effective, accountable and transparent institutions at all levels.” [103]

Further, the privatization of regulation would represent a significant step backwards in a nation- and world-wide movement to establish free access to law and legal information. The Declaration on Free Access to Law affirms: that public legal information from all countries and international institutions is part of “the common heritage of humanity;” that maximizing access to this information promotes justice and the rule of law; that public legal information is “digital common property” and should be accessible to all on a non-profit basis and free of charge; and that organizations (such as legal information institutes) have the right to publish public legal information and the government bodies that create or control that information should provide access to it so that it can be published by other parties.[104] By operating to privatize what had previously been public legal information and by protecting that information with intellectual property and trade secret laws, we would reject outright these affirmations. We would destroy the “common heritage of humanity,” and we would make law—and thereby justice itself—that much more difficult and expensive to access.

The proposal to privatize regulation has another troubling aspect. Hadfield explains how there is an “economic demand” for law because of the protection that it offers businesses.[105] As a hypothetical, she paints a picture for a business in a world with “lousy legal infrastructure.” In this world, employees and other businesses have no reliable identification or addresses, there are no reliable credit-rating agencies, there are no courts (and notably no courts that can’t be bribed by those richer and better connected), no one answers the 911 call when the business’s computers are stolen, the business can’t find an internet provider because its competitors have entered into exclusive contracts with all of them, and government representatives insist the business owes many thousands of dollars in back taxes that in fact were already paid.[106]

Having painted this picture, Hadfield rightfully explains that we need rules—that we need law. She rightfully points out that rather than objecting to rules, and seeking to avoid them, we should be happy for their existence and, especially, we should appreciate and be glad for how our “legal infrastructure” protects us.[107]

Indeed, the protection laws offer to us—to each of us, equally—is considered to be so important that it is enshrined in the Constitution. Specifically, the 14th Amendment, ratified in 1868 in the wake of the Civil War, forbids any state as well as local government from denying to any person within their jurisdiction the equal protection of its laws. The impetus for this amendment was to assure that states, including states of the former Confederacy, would act to protect the civil rights of all its citizens, including former slaves. It has since been applied on a much broader basis, and in particular it has been used to protect businesses from arbitrary or discriminatory state actions. The amendment applies only to state (government) actors; it does not apply to private actors.

There is irony in stressing the importance of the protections that law offers to us. This is because privatized regulation has the potential of significantly if not drastically reducing the application of the 14th Amendment by reducing the application of all our rules and processes to all citizens on an equal basis. Indeed, it will leave certain citizens—perhaps many—without the protection of any law or process, depending upon the “setting.” This is because rules and processes previously adopted by public actors would instead be adopted and enforced by private actors. As private actors, they would be free to exclude persons from the application—protection—of their rules and processes. In particular, they would be free to exclude those unable to pay “market” price. If that occurs, those persons would have no choice but to fall back upon public rules and processes. But those would necessarily be inferior to the private ones, given that, as Hadfield points out, governments do not have the resources they need to effectively regulate. It is also quite possible that, as noted above, public regulators would be even further starved of resources on the assumption that they didn’t need any since private regulators were on the scene. In that event, it is quite possible that, depending upon the “setting,” there would no longer be any applicable public law or process, with the result that persons unable to pay the “market” rates for private regulation would lose all protection of the law.

In a “pay to play” scenario, Hadfield describes a situation when a hypothetical private, for profit regulator would need a ruling from a California court before the private regulator is able to continue with its own regulatory process, but where the California court might take a long time to issue such a ruling. Hadfield’s recommendation for a “really smart” private regulator to get around this problem is that it “make arrangements” with the California courts to get quick rulings, and that it pay the courts for that fast-track service.[108] This suggestion ironically echoes Hadfield’s description of a “lousy legal infrastructure” where courts can be bribed by those richer and better connected, and it exacerbates the failure of law to provide equal protection for all citizens.

Our country’s experiences with the privatization of prisons, water and education show us that the privatization of a public service is unlikely to benefit the public. There is no reason to believe that the privatization of another, crucial, public service—regulation—would have better results. If Hadfield’s proposal were to be adopted in the manner she proposes and function in the manner she predicts, it would result in a regulatory dystopia where: decisions that concern society as a whole that were formerly made by at least ostensibly democratic institutions would instead be made by private companies seeking to maximize profit and shareholder value; where rules and processes that concern society as a whole can be kept secret, or made available only upon payment of “market” price; and where at least some persons and possibly many lose their right to equal protection under the law. It would turn citizens of a democracy into mere customers of a corporate state.

Hadfield is wholly correct in her observation that we desperately need better regulation—not just for legal services (the focus of this book) but in many if not all other domains. However, if regulation is a public service—if it is something that we as a society need and value because it brings economic as well as social value to everyone—then it cannot be financed or developed privately. It must be financed publicly through equitable, progressive revenue sources, and it must be developed by public, democratic processes.[109] Are the processes messy? Certainly they are. But, to quote Colin Crouch, “we are enmeshed in needs for collective and public goods. To seek to wriggle out from the challenges that this presents is to wriggle out of being human.”[110]

Assessment

In the spirit of the rest of this book, it makes sense to examine the extent to which the proposal to privatize regulation would, if implemented, correspond to the OECD’s six essential elements of an effective regulatory policy. For each element, the response lies upon a spectrum, from “yes,” “for the most part,” “sort of,” “limited,” “not really,” and “no:”

Table 27.1: Assessment for Privatized Regulation (as proposed in Rules for a Flat World)

Click on table to enlarge.

This chapter is an excerpt from Modernizing Legal Services in Common Law Countries: Will the US Be Left Behind? To learn more about the book, please click here.

Notes

[1] Hadfield, Rules for a Flat World, 48-54, 335-340.

[2] Hadfield, “The Cost of Law.”

[3] Hadfield and Heine, “Life in the Law-Thick World.”

[4] Hadfield, “Legal Barriers to Innovation.”

[5] Hadfield, “Legal Infrastructure and the New Economy.”

[6] Hadfield, Rules for a Flat World, 219-245.

[7] Ibid., 130.

[8] Ibid., 169-175.

[9] Ibid., 176-185. See also Hadfield and Heine, “Life in the Law-Thick World.”

[10] Hadfield, Rules for a Flat World, 185-194.

[11] Ibid., 194-195.

[12] Ibid., 199.

[13]Daniel Stedman Jones, Masters of the Universe: Hayek, Friedman, and the Birth of Neoliberal Politics (Princeton, New Jersey: Princeton University Press, 2012); George Monbiot, “Neoliberalism – The Ideology at the Root of all Our Problems,” The Guardian, April 15, 2016, https://www.theguardian.com/books/2016/apr/15/neoliberalism-ideology-problem-george-monbiot.

[14] Hadfield, Rules for a Flat World, 199-205.

[15] Ibid., 205-207.

[16] Ibid., 207-212.

[17] Ibid., 247.

[18] Ibid., 228, 248.

[19] Ibid., 248.

[20] Ibid., 269.

[21] Ibid., 250, 260-277.

[22] Ibid., 245, 267.

[23] Ibid., 245.

[24] The Law Society, “Our Constitution,” https://www.lawsociety.org.uk/About-us/our-constitution/; CILEx, “Royal Charter,” https://www.cilex.org.uk/about_cilex/who_we_are/royal-charter; CIPA, “About Us,” http://www.cipa.org.uk/about-us/about-us/; CITMA, “The Making of Our Royal Charter,” https://www.citma.org.uk/about_citma/royal_charter/making_our_royal_charter; ICAEW, “Charter and Bye-laws,” http://www.icaew.com/en/about-icaew/who-we-are/charter-and-bye-laws; Administration of Justice Act 1985, Art. 28, http://www.legislation.gov.uk/ukpga/1985/61/section/12; The Faculty Office, “About the Faculty Office & Our History,” http://www.facultyoffice.org.uk/about-us/ (all accessed March 20, 2017).

[25] See Privy Council: “Royal Charters,” https://privycouncil.independent.gov.uk/royal-charters/; “Charted Bodies,”   https://privycouncil.independent.gov.uk/royal-charters/chartered-bodies/; “Privy Council Members,” https://privycouncil.independent.gov.uk/privy-council/privy-council-members/ (all accessed March 20, 2017).

[26] Legal Services Act of 2007, Art. 28, http://www.legislation.gov.uk/ukpga/2007/29/pdfs/ukpga_20070029_en.pdf.

[27] See: (1) Solicitors Regulation Authority, SRA Governance Handbook, January, 2015, 44; (2) Constitution of the Bar Standards Board as amended 12 November 2011, 4, 10, 14-15; Standing Orders for the Bar Standards Board, January 26, 2017, 3, https://www.barstandardsboard.org.uk/media/1818467/bsb_standing_orders_2017__approved_january_2017_.pdf; (3) CILEx Regulation, “Code of Conduct for Board Members,” last reviewed January 2015, http://www.cilexregulation.org.uk/~/media/pdf_documents/cilex-regulation/code-of-conduct/code-of-conduct-for-board-members.pdf?la=en; CILEx Regulation, “Applicants for Membership of the Disciplinary Tribunal and Panels: Application Pack,” undated, 5-6, http://www.cilexregulation.org.uk/~/media/pdf_documents/cilex-regulation/vacancies/professional_conduct_panel_lay_member/panel-and-tribunal-pool-members-application-pack.pdf?la=en; (4) Council for Licensed Conveyancers, “Professional Member of the Council,” undated, 5-6, http://www.conveyancer.org.uk/CLCSite/media/Current-Vacancies/Professional-Member-of-Council-Candidate-Pack.pdf; (5) IPReg, “Promotion of the Regulatory Objectives Policy Statement,” undated, 9, http://ipreg.org.uk/wp-content/files/2012/09/Promotion-of-the-Regulatory-Objectives-Policy-Statement-LSB.pdf; The Patent Regulation Board and Trade Mark Regulation Board, “Minutes,” November 27, 2014, 7, 9, http://ipreg.org.uk/wp-content/files/2012/09/Minutes_November_2014_Board_Meeting_and_supporting_papers-_website.pdf; (6) ICAEW, “Probate Committee Terms of Reference,” undated, 2, https://www.icaew.com/-/media/corporate/files/members/regulations-standards-and-guidance/reserved-legal-services/20-terms-of-reference-for-the-probate-committee.ashx?la=en.

[28] Committee on Standards in Public Life, “Striking the Balance: Upholding the Seven Principles of Public Life in Regulation,” September, 2016, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/554817/Striking_the_Balance__web__-_v3_220916.pdf; see also Committee on Standards in Public Life, “The 7 Principles of Public Life,” accessed March 1, 2017, https://www.gov.uk/government/publications/the-7-principles-of-public-life/the-7-principles-of-public-life—2.

[29] OECD Being an Independent, 41.

[30] Hadfield, Rules for a Flat World, 248.

[31] For an interesting discussion of the privatization of public services in the UK, see Colin Crouch, The Knowledge Corrupters: Hidden Consequences of the Financial Takeover of Public Life (Cambridge, UK: Polity Press, 2016), 97-127.

[32] Hadfield, Rules for a Flat World, 271, 277.

[33] J.C. Oleson, “The Punitive Coma,” California Law Review 90 (2002): 846, http://dx.doi.org/doi:10.15779/Z38HH7S; Sacramento Bee and Andy Furillo, “California’s Prisons Bursting at Seams and Understaffed,” East Bay Times, November 26, 2005, http://www.eastbaytimes.com/2005/11/26/californias-prisons-bursting-at-seams-and-understaffed/; Illinois Criminal Justice Information Authority, “Blueprint for the Future: Final Report of Trends & Issues for the 1990s,” January, 1991, 38.

[34] Cody Mason, “Too Good to Be True: Private Prisons in America,” report prepared for The Sentencing Project, January, 2012, 1, http://sentencingproject.org/wp-content/uploads/2016/01/Too-Good-to-be-True-Private-Prisons-in-America.pdf.

[35] Sally Q. Yates, “Phasing Out Our Use of Private Prisons,” The United States Department of Justice, August 18, 2016, https://www.justice.gov/opa/blog/phasing-out-our-use-private-prisons.

[36] Joseph Shannon Gregson, “Comparing Public and Private Prison Systems,” Paper presented to the Public Administration Faculty at the University of Michigan-Flint In Partial Fulfillment of the Requirements for the Master of Public Administration, Fall, 2000, iv, 2, 4, 16, https://deepblue.lib.umich.edu/bitstream/handle/2027.42/117712/Gregson.pdf?sequence=1&isAllowed=y.

[37] Matt Zapotosky and Chico Harlan, “Justice Department Says It Will End Use of Private Prisons,” The Washington Post, August 18, 2016, https://www.washingtonpost.com/news/post-nation/wp/2016/08/18/justice-department-says-it-will-end-use-of-private-prisons/?amp;tid=ss_tw&utm_term=.57f0149acafa&postshare=9221471534255226&utm_term=.0b4001c3b3f9.

[38] Office of the Inspector General, US Department of Justice, “Review of the Federal Bureau of Prisons’ Monitoring of Contract Prisons,” August, 2016, https://oig.justice.gov/reports/2016/e1606.pdf#page=2.

[39] Sally Q. Yates, “Memorandum for the Acting Director, Federal Bureau of Prisons,” August 18, 2016, https://www.justice.gov/opa/file/886311/download.

[40] See, for example, New York Times Editorial Board, “Under Mr. Trump, Private Prisons Thrive Again,” New York Times, February 24, 2017, https://www.nytimes.com/2017/02/24/opinion/under-mr-trump-private-prisons-thrive-again.html?_r=0; Justin Carissimo, “Jeff Sessions Reverses Obama Order to Phase Out Private Prisons,” Independent, February 23, 2017, http://www.independent.co.uk/news/world/americas/jeff-sessions-signals-support-for-private-prisons-a7596661.html.

[41] Mason, “Too Good to Be True,” 6-8, 10; see also In the Public Interest, “How Privatization Increases Inequality,” September, 2016, 40-42, https://www.inthepublicinterest.org/wp-content/uploads/InthePublicInterest_InequalityReport_Sept2016.pdf.

[42] Mason, “Too Good to Be True,” 11, quoting Scott D. Camp and Gerald G. Gaes, “Growth and Quality of U.S. Private Prisons: Evidence from a National Survey,” paper prepared for Federal Bureau of Prisons, Office of Research and Evaluation, September 21, 2001, 16, https://www.bop.gov/resources/research_projects/published_reports/pub_vs_priv/oreprres_note.pdf.

[43] Mason, “Too Good to Be True,” 11-12; See also, for example, Linda Greenhouse, “Outsourcing the Constitution,” New York Times, March 1, 2017, https://www.nytimes.com/2017/03/01/opinion/outsourcing-the-constitution.html.

[44] Mason, “Too Good to Be True,” 12.

[45] Ibid., 13-16.

[46] Christie Thompson, “Everything You Ever Wanted to Know About Private Prisons…is None of your Damn Business,” The Marshall Project, December 18, 2014, https://www.themarshallproject.org/2014/12/18/everything-you-ever-wanted-to-know-about-private-prisons#.nQOGdI8Gw; Mike Tartaglia, “Private Prisons, Private Records,” Boston University Law Review 94 (2014): 1689-1744, http://www.bu.edu/bulawreview/files/2014/10/TARTAGLIA.pdf.

[47] Michelle Ye Hee Lee, “Yes, U.S. Locks People Up at a Higher Rate than Any Other Country,” The Washington Post, July 7, 2015, https://www.washingtonpost.com/news/fact-checker/wp/2015/07/07/yes-u-s-locks-people-up-at-a-higher-rate-than-any-other-country/?utm_term=.854bffd0aa07.

[48] Clint Smith, “Why the U.S. Is Right to Move Away from Private Prisons,” The New Yorker, August 24, 2016, http://www.newyorker.com/news/news-desk/why-the-u-s-is-right-to-move-away-from-private-prisons.

[49] Committee on Privatization of Water Services in the United States, National Research Council, Privatization of Water Services in the United States: An Assessment of Issues and Experience (Washington, DC: National Academy Press, 2002), 30-32, https://doi.org/10.17226/10135; Center for International Environmental Law, “The Ebb and Flow of the Water Privatization Debate Briefing Paper for the Fourth World Water Forum,” March 2006, 2, http://www.ciel.org/Publications/EbbFlow_Mar06.pdf; Food & Water Watch, “The State of Public Water in the United States,” February, 2016, 3-4, http://www.foodandwaterwatch.org/sites/default/files/report_state_of_public_water.pdf.

[50] “America’s Neglected Water Systems Face a Reckoning,” Knowledge@Wharton, June 10, 2015, http://knowledge.wharton.upenn.edu/article/americas-neglected-water-systems-face-a-reckoning/; Alana Semuels, “Aging Pipes Are Poisoning America’s Tap Water,” The Atlantic, July 29, 2015, https://www.theatlantic.com/business/archive/2015/07/dont-drink-the-water/399803/; Michael Hawthorne, “EPA Warns of Lead in Water in East Chicago,” Chicago Tribune, March 2, 2017, http://www.chicagotribune.com/suburbs/ct-east-chicago-lead-water-20170302-story.html.

[51] United States Government Accountability Office, “Water Infrastructure: Information on Selected Midsize and Large Cities with Declining Populations,” Report to the Ranking Member, Subcommittee on Environment and the Economy, Committee on Energy and Commerce, House of Representatives, September, 2016, 2, http://gao.gov/assets/680/679783.pdf; American Water Works Association, “Buried No Longer: Confronting America’s Water Infrastructure Challenge,” February 27, 2012, 10, http://www.awwa.org/Portals/0/files/legreg/documents/BuriedNoLonger.pdf.

[52] America’s Neglected Water Systems Face a Reckoning,” Knowledge@Wharton; Maude Barlow and Wenonah Hauter, “The Dangerous Return of Water Privatization,” Utne Reader, January/February 2014, http://www.utne.com/politics/water-privatization-zm0z14jfzros?pageid=2#PageContent2.

[53] Committee on Privatization of Water Services, Privatization of Water Services, 17, 20-21, 24; Shiney Varghese, “Privatizing U.S. Water,” paper prepared by the Institute for Agriculture and Trade Policy Trade and Global Governance Program, July, 2007, 2-3, http://www.iatp.org/files/451_2_99838.pdf.

[54] Edwin S. Rubenstein, “The Untapped Potential of Water Privatization,” A Hudson Institute Report for American Water Works, Inc., October, 2000, http://www.esrresearch.com/Theprivatewaterindustry.htm.

[55] “Are We Better Off Privatizing Water?” Wall Street Journal, October 8, 2012, https://www.wsj.com/articles/SB10000872396390443816804578002280926253750; Rubenstein, “The Untapped Potential of Water Privatization.

[56]  Crystal Lombardo, “Water Privatization Pros and Cons,” Vision Launch, January 7, 2015, http://visionlaunch.com/water-privatization-pros-and-cons/#.

[57] Rubenstein, “The Untapped Potential of Water Privatization.”

[58] “Are We Better Off Privatizing Water?” Wall Street Journal.

[59] Emanuele Lobina with Corporate Accountability International, “Troubled Waters: Misleading Industry PR and the Case for Public Water,” November, 2014, 18, https://www.stopcorporateabuse.org/sites/default/files/resources/troubledwaters_webres.pdf; see also Food & Water Watch, “The State of Public Water in the United States,” 5-6.

[60] David Gordon, “An Analysis of the Privatization of Drinking Water Facilities in the United States,” Masters project submitted in partial fulfillment of the requirements for the Masters of Environmental Management degree in the Nicholas School of the Environment of Duke University, May, 2011, 2, 40-49, http://dukespace.lib.duke.edu/dspace/bitstream/handle/10161/3708/Gordon_David_Final_MP.pdf;sequence=1; Lobina, “Troubled Waters,” 16.

[61] Lobina, “Troubled Waters,” 16, 22-24; Food & Water Watch, “Water Privatization: Facts and Figures,” August 31, 2015, http://www.foodandwaterwatch.org/insight/water-privatization-facts-and-figures; Public Citizen, “Top 10 Reasons to Oppose Water Privatization,” undated, 2, https://www.citizen.org/documents/Top10-ReasonsToOpposeWaterPrivatization.pdf.

[62] Craig Anthony Arnold, “Water Privatization Trends in the United States: Human Rights, National Security, and Public Stewardship,” William & Mary Environmental Law and Policy Review 33 (2009): 803, http://scholarship.law.wm.edu/wmelpr/vol33/iss3/4/; see also Lobina, “Troubled Waters,” 10-12.

[63] Food & Water Watch, “The State of Public Water in the United States,” 7; Food & Water Watch, “The Public Works How the Remunicipalization of Water Services Saves Money,” December, 2010, http://www.foodandwaterwatch.org/sites/default/files/The%20Public%20Works%20FS%20Dec%202010.pdf.

[64] Sara Ehrhardt and Maude Barlow, “A Debate on Water Privatization,” Part Six, Grist, July 17, 2004, http://grist.org/article/barlow2/; Public Citizen, “Top 10 Reasons to Oppose Water Privatization,” 2.

[65] Jon R. Luoma, “Water for Profit,” Mother Jones, November/December, 2002, http://www.motherjones.com/politics/2002/11/water-profit; Corporate Accountability International, “Public Water Works! The Case for Prioritizing our Most Essential Public Service,” 2012, 19, https://www.stopcorporateabuse.org/sites/default/files/resources/public-water-works.pdf; George Potanovic, “Take Back Our Water: How Trump’s Appetite for Privatization Threatens Your Drinking Water,” Salon, January 23, 2017, http://www.salon.com/2017/01/23/take-back-our-water-how-trumps-appetite-for-privatization-threatens-your-drinking-water_partner/; Food & Water Watch, “Has Water Privatization Gone Too Far in New Jersey?” June, 2010, 6, https://www.inthepublicinterest.org/wp-content/uploads/FWW_PrivatizationInNewJersey.pdf.

[66] Food & Water Watch, “The State of Public Water in the United States,” 7-8; Lobina, “Troubled Waters,” 32.

[67] Lobina, “Troubled Waters,” 24-25.

[68] “Why America’s Schools Have A Money Problem,” NPR, April 18, 2016, http://www.npr.org/2016/04/18/474256366/why-americas-schools-have-a-money-problem; “More Than 40% of Low-Income Schools Don’t Get a Fair Share of State and Local Funds, Department of Education Research Finds,” US Department of Education, November 30, 2011,  https://www.ed.gov/news/press-releases/more-40-low-income-schools-dont-get-fair-share-state-and-local-funds-department-; Meredith Broussard, “Why Poor Schools Can’t Win at Standardized Testing,” The Atlantic, July 15, 2014, https://www.theatlantic.com/education/archive/2014/07/why-poor-schools-cant-win-at-standardized-testing/374287/.

[69] John Merrifield, The School Choice Wars (Lanham, Maryland: Scarecrow Press, 2001), 10; Nathan J. Robinson, “Why Is ‘The Decimation of Public Schools’ A Bad Thing?” Current Affairs, November 30, 2016, https://www.currentaffairs.org/2016/11/why-is-the-decimation-of-public-schools-a-bad-thing.

[70] Merrifield, The School Choice Wars, 10.

[71] Robinson, “Why Is The Decimation.”

[72] Benjamin Herold, “Northeast Schools: ‘Bursting at the Seams,’” The Notebook, June 10, 2011, http://legacy.thenotebook.org/blog/113794/northeast-schools-bursting-seams; Rose Arce, “Does Class Size Matter?” CNN School of Thought, December 6, 2011, http://schoolsofthought.blogs.cnn.com/2011/12/06/does-class-size-matter/.

[73] Scott McNealy, “Our Public Education System ‘is Failing,’” CNBC, August 9, 2016, http://www.cnbc.com/2016/08/09/our-public-education-system-is-failing-scott-mcnealy-commentary.html.

[74] Adam B. Schaeffer, “No, Virginia, There is No Such Thing as School Choice,” Cato Institute, October 29, 2006, https://www.cato.org/publications/commentary/no-virginia-there-is-no-such-thing-school-choice.

[75] The Friedman Foundation for Educational Choice, “How Does School Choice Affect Public Schools?” undated, 1, http://www.schoolchoicewi.org/files/7114/2064/5055/How-does-school-choice-affect-public-schools.pdf.

[76] Schaeffer, “No, Virginia.”

[77] Milton Friedman, “Why America Needs School Vouchers,” Wall Street Journal, September 28, 2000, https://www.edchoice.org/who-we-are/our-founders/the-friedmans-on-school-choice/article/why-america-needs-school-vouchers/.

[78] Martin Carnoy, “School Vouchers are Not a Proven Strategy for Improving Student Achievement,” Report by the Economic Policy Institute, February 28, 2017, 3-7, http://www.epi.org/files/pdf/121635.pdf; Jonathan N. Mills, Anna J. Egalite, and Patrick J. Wolf, “How Has The Louisiana Scholarship Program Affected Students? A Comprehensive Summary of Effects after Two Years,” Education Research Alliance, February 22, 2016, 2-7, http://educationresearchalliancenola.org/files/publications/ERA-Policy-Brief-Public-Private-School-Choice-160218.pdf; Atila Abdulkadiroglu, Parag Pathak, and Christopher Walters, “School Vouchers and Student Achievement: First-Year Evidence from the Louisiana Scholarship Program,” School Effectiveness & Inequality Initiative Discussion Paper #2015.06, December, 2015, http://seii.mit.edu/wp-content/uploads/2016/01/SEII-Discussion-Paper-2015.06-Abdulkadiro%C4%9Flu-Pathak-Walters.pdf; David Figlio and Krzysztof Karbownik, “Evaluation of Ohio’s EdChoice Scholarship Program: Selection, Competition, and Performance Effects,” Thomas B. Fordham Institute, July, 2016, 2, 32-38, https://edex.s3-us-west-2.amazonaws.com/publication/pdfs/FORDHAM%20Ed%20Choice%20Evaluation%20Report_online%20edition.pdf.

[79] Abdulkadiroglu, Pathak, and Walters, “School Vouchers and Student Achievement,” 3.

[80] Carnoy, “School Vouchers are Not a Proven Strategy,” 6; Figlio and Karbownik, “Evaluation of Ohio’s EdChoice,” 16.

[81] Abdulkadiroglu, Pathak, and Walters, “School Vouchers and Student Achievement,” 3; Carnoy, “School Vouchers are Not a Proven Strategy,” 3; Stephanie Mencimer, “Mike Pence’s Voucher Program in Indiana Was a Windfall for Religious Schools,” Mother Jones, December 2, 2016, http://www.motherjones.com/politics/2016/11/mike-pence-voucher-program-religious-schools; Ann Doss Helms, “Praying for Options: Religious Schools Dominate NC Voucher Program,” The Charlotte Observer, April 8, 2016, http://www.charlotteobserver.com/news/local/education/article70759617.html.

[82] Mark Weber, “School Vouchers Are Not a Cure for Segregation,” Parts I-V, Jersey Jazzman, May, 2016, http://jerseyjazzman.blogspot.fr/2016/05/school-vouchers-are-not-cure-for.html.

[83] Kevin Carey, “DeVos and Tax Credit Vouchers: Arizona Shows What Can Go Wrong,” New York Times, March 2, 2017, https://www.nytimes.com/2017/03/02/upshot/arizona-shows-what-can-go-wrong-with-tax-credit-vouchers.html?_r=0; Capitol Broadcasting Company, “Editorial: Embezzlement Charge At Fayetteville Private School Exposes Risks of Voucher Abuse,” WRAL, February 21, 2017, http://www.wral.com/editorial-embezzlement-charge-at-fayetteville-private-school-exposes-risks-of-voucher-abuse/16541678/; Gus Garcia-Roberts, “McKay Scholarship Program Sparks a Cottage Industry of Fraud and Chaos,” Miami New Times, June 23, 2011, http://www.miaminewtimes.com/news/mckay-scholarship-program-sparks-a-cottage-industry-of-fraud-and-chaos-6381391.

[84] See, for example, Lindsay Wagner, “Tiny Private School Puts Spotlight on Voucher System’s Flaws,” NC Policy Watch, March 1, 2017, http://www.ncpolicywatch.com/2016/03/01/tiny-private-school-puts-spotlight-on-voucher-systems-flaws/; see also Lyndsey Layton, “D.C. School Voucher Program Lacks Oversight, GAO Says,” Washington Post, November 15, 2013, https://www.washingtonpost.com/local/education/dc-school-voucher-program-lacks-oversight-gao-says/2013/11/15/9bb8c35e-4e3d-11e3-be6b-d3d28122e6d4_story.html?utm_term=.1f6d412969d2.

[85] Association of Christian Schools International, “Frequently Asked Questions about School Choice,” accessed March 21, 2017, https://www.acsi.org/legal-legislative-pages/school-choice-pages/frequently-asked-questions-about-school-choice.

[86] Hadfield, Rules for a Flat World, 5.

[87] Ibid., 249-264.

[88] Ibid., 3.

[89] Indeed, in his seminal 1974 article, Marc Galanter demonstrated that when courts charge fees in order allow access and especially if those fees are combined with the need for other resources, such as the funds to hire a lawyer, access to those courts, and thus access to justice, is considerably diminished for those who do not have the required resources. Expanding on Galanter, Hannah Simpson’s preliminary work demonstrates that in wealthy countries such as the United States, when the state (that is, the government) seeks to use its “property rights institutions” to generate income used for other functions of the state, the result is enhanced access to justice for wealthy persons who are able to pay the required fees, and diminished access to justice for those who are not. Marc Galanter, “Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change,” Law & Society Review 9 (1974): 95-160, http://jan.ucc.nau.edu/~phelps/Galanter%201974.pdf; Hannah Simpson, “Access to Justice in Revenue-Seeking Legal Institutions,” Working Paper, June 14, 2017, https://static1.squarespace.com/static/5668949cdc5cb47474730d69/t/59417e47f5e231163ce27bbc/1497464393084/Access+to+Justice+Manuscript_Simpson.pdf.

[90] Hadfield, Rules for a Flat World, 246-248.

[91] George Monbiot, “No Country with a McDonald’s Can Remain a Democracy,” The Guardian, December 6, 2016, https://www.theguardian.com/commentisfree/2016/dec/06/mcdonalds-democracy-corporate-globalisation-trump-le-pen-farage; Joel S. Hirschhorn, “America, Welcome to Your Delusional Democracy,” Wake Up World, September 16, 2016, https://wakeup-world.com/2016/09/16/welcome-to-your-delusional-democracy/.

[92] Martin Gilens and Benjamin I. Page, “Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens,” Perspectives on Politics, September, 2014, 565, 575-577, https://scholar.princeton.edu/sites/default/files/mgilens/files/gilens_and_page_2014_-testing_theories_of_american_politics.doc.pdf; see also Martin Gilens and Benjamin I. Page, “Critics Argued With Our Analysis of U.S. Political Inequality. Here Are 5 Ways They’re Wrong,” Washington Post, May 23, 2016, https://www.washingtonpost.com/news/monkey-cage/wp/2016/05/23/critics-challenge-our-portrait-of-americas-political-inequality-heres-5-ways-they-are-wrong/?utm_term=.cf83dde48245.

[93] Hadfield, Rules for a Flat World, 208, 210-212, 248.

[94] Barbara Bardes, ‎Mack Shelley, and ‎Steffen Schmidt, American Government and Politics Today: The Essentials 2009 – 2010 Edition (Boston: Wadsworth Cengage Learning, 2010), 10.

[95] Hadfield, Rules for a Flat World, 271, 253.

[96] Ibid., 252, 254, 262, 265, 273-275.

[97] Ibid., 252.

[98] Ibid., 248, 265, 266-268, 276-277.

[99] Ibid., 272, 276.

[100] Ibid., 273.

[101] Ibid., 271, 277.

[102] Ibid., 251, 275-276.

[103]  “Agenda for Sustainable Development,” 25-26.

[104] “Declaration on Free Access to Law,” Free Access to Law Movement, last amended 2012, http://www.fatlm.org/declaration/.

[105] Hadfield, Rules for a Flat World, 91-100.

[106] Ibid.,90.

[107] Ibid., 94.

[108] Ibid., 256.

[109] In the Public Interest, “How Privatization Increases Inequality,” 48.

[110] Colin Crouch, The Strange Non-Death of Neoliberalism (Cambridge, England: Polity Press, 2011), 180.

Modernizing Legal Services

Ch 25 Final Assessment

Final Assessment

A debate that focuses exclusively on whether not the legal profession is, or should be, self-regulating is a false and ultimately futile debate. Instead, the real (and constructive) debate is: how do we create a regulatory environment that embraces the OECD’s elements of good governance, in order improve regulation of the legal profession as well as of legal services as a whole?

The table below (Table 25.1) brings together the assessment for each country:

Click on table to enlarge.

The table above reflects four different regulatory environments: one that has fully embraced these six elements of good governance, one that has accepted them in large part, one that is cautiously experimenting with them, and one that rejects them entirely. The consequences of these differences are clear to see:

While England & Wales is by no means perfect, it has a robust and productive—even prolific—regulatory environment. The legal professions have a voice in how legal services are regulated, but their voices do not control, nor does any one of the large variety of other voices that are also heard. Debate about how legal services should be regulated is constant, open and (usually) frank. Multiple actors conduct empirical research and publish it in open access. Regulatory decisions are made only after conducting that research and taking into account the perspectives of most if not all stakeholders (most notably citizens/the public).

In Australia, the variety of authorities and actors that play roles is not as large. Most notably, citizen engagement is practically nonexistent and the legal profession still plays an overly-dominant role in regulation: these factors likely explain why the LPUL failed to extend the regulatory framework for ILPs to all legal service providers. Nevertheless, the other elements of good governance are more or less closely embraced, with the result of a regulatory environment that is also robust and productive, and where regulatory decisions are also made, for the most part, only after conducting empirical research.

Canada has been described as the “last bastion of unfettered self-regulation” in the common law world. Nevertheless, Canada has implemented the six elements in limited ways, and it appears to be moving, however cautiously, towards broader implementation. In certain provinces professional regulators serving on staff of the law societies (rather than the “benchers” who are elected from among practicing members of the profession) appear to be the driving force behind a movement towards a risk-based approach. While the words “robust” and “productive” may not be the most accurate to describe Canada’s regulatory environment, increased openness and exploration are.

The US could not be more different. The US has not embraced, or even partially implemented any of the six elements, not even in a limited manner (save for Illinois, which has partially implemented one element in a highly limited manner). The result is a regulatory environment that is paralyzed and unproductive, if not moribund.

This analysis raises the question: why are there such differences among these four countries? While no doubt there is more than one response to that question, an important if not crucial one is this: the more actively the country’s legislative and executive branches participate in the regulation of legal services, the more modern—the better— the regulatory environment. In England & Wales it was the executive that instigated the countries’ metamorphosis and the legislature that brought it to fruition, over the objections of some (but by no means all) of the members of the countries’ legal professions. In Australia, it was primarily the legislature, and especially the Parliament of New South Wales, that brought ILPs into being, with minimal input from the legal profession. It is not a coincidence that later when the legal profession was given greater power in the decision making process, and notably when the National Legal Profession Reform Taskforce (made up principally of representatives of the executive) and the state legislatures deferred to the Consultative Group (made up principally of members of the legal profession) that the regulatory environment in New South Wales and Victoria took a step backwards. In Canada, the legislature and the executive play minor roles as compared to the outsized role of the profession in its own regulation: this no doubt explains on the one hand why Canada’s progress is relatively slow and incremental, but also, on the other hand, why it is able to make any progress at all.

In very stark contrast, in the US, on the federal as well as state level, the executive and legislative branches play virtually no role in the regulation of legal services. Further, as discussed in chapter 2 and again in chapter 21, while the judicial branch of each state holds de jure power to regulate the legal profession, it has for the most part abdicated in the exercise of this power, leaving a vacuum for the profession, and notably for the ABA, to fill. For so long as the three branches of government: executive, legislative and judicial all fail to assert regulatory power over the legal profession and, by extension, over legal services, it will be virtually impossible for the country’s regulatory environment to improve.

This analysis also demonstrates that in the US, a debate that focuses exclusively on whether not the legal profession is, or should be, self-regulating is a false and ultimately futile debate. Instead, the real (and constructive) debate is: how do we create a regulatory environment that embraces the OECD’s elements of good governance, in order improve regulation of the legal profession as well as of legal services as a whole? What are the changes that we need to make in order to breathe life into—to modernize—our regulatory environment—to make it as robust and productive as that of England & Wales?

This chapter is an excerpt from Modernizing Legal Services in Common Law Countries: Will the US Be Left Behind? To learn more about the book, please click here.

Modernizing Legal Services

Ch 21 The Two Commissions: Different or the Same?

The Two Commissions: Different or the Same?

Goal 1 of the ABA is to serve its members and such changes would not. Paula Hudson Holderman

There is no question that the work of the Futures Commission was prolific. In addition to releasing issues papers and reports, it also organized or fostered the organization of a “National Summit on Innovation in Legal Services”[1] and local “grassroots meetings.”[2] While the topics of those meetings varied, their principal focus was to discuss the obstacles that individuals and businesses face in obtaining legal services and to share ideas and experiences with respect to existing and proposed innovations in the delivery of legal services and in legal education (for example, the use of technology to streamline court processes and/or assist unrepresented litigants,[3] prepaid legal service plans,[4] limited scope legal services,[5] inclusion of technology-focused courses in a law school curriculum,[6] and a single point of entry into the justice system[7]…). The Commission also organized webinars on comparable topics, including one that juxtaposed Gillian Hadfield, one of the most prominent advocates of alternative structures, with Lawrence Fox, one of the most prominent opponents.[8] The Commission’s website contains the webinars as well as videos of a number of presentations—considered as a whole, they contain a wealth of information and insight. While the 20/20 Commission could not be described as inactive, the extent and the scope of its meetings and other activities pale in comparison to those of the Futures Commission.

Further, the Resolution proposed by the Futures Commission and adopted by the House of Delegates is remarkable. As noted above, it expressly recognizes the existence of “non-traditional legal service providers.” Instead of criticizing the quality or utility of the services of non-traditional legal services providers and/or contending that they engage in the unauthorized practice of law, the ABA has done an about-face and expressly accepts them. And it goes further: it provides guidelines to state courts with respect to how to regulate them and, in doing so, provides the ABA’s implicit permission for state courts to regulate them. In contrast, while the 20/20 Commission did make a number of recommendations to the House of Delegates,[9] all of which were accepted, none of them could be or, indeed, have been described as “remarkable.” (To the contrary, Laurel Terry argues that the 20/20 Commission missed an opportunity because it failed to ask the “big picture” question of “whether, and how, lawyer regulation and the ABA should adapt in light of global developments”[10]).

But as remarkable as the Resolution proposed by the Futures Commission and adopted by the House of Delegates is, it is hardly groundbreaking. It doesn’t create a path for the creation of non-traditional legal service providers, as they have already been created (albeit in highly limited forms given the restrictions of Model Rule 5.4, which, again, remain in place). It doesn’t alter the quality or the usefulness of the services of non-traditional legal service providers, nor does it have any bearing on the extent to which their activities may or may not constitute the unauthorized practice of law (although the Resolution may very well dampen enthusiasm for future lawsuits by state and local bar associations in that regard). While certainly state courts will find the ABA’s suggested guidelines on how to regulate non-traditional legal service providers to be interesting, and quite likely also useful, the state courts did not need such guidelines from the ABA; indeed, the Supreme Court of Colorado did not wait for them in order to develop its own.[11] Finally, at no point has any state supreme court required the ABA’s permission, implicit or not, to regulate anything. At least, on paper none has.

In fact, as remarkable as the work of the Futures Commission was, and as different it was from that of the 20/20 Commission, the two Commissions shared a number of fundamental commonalities. Those commonalties served to severely compromise the effectiveness as well as the integrity of the work of each Commission, especially (but not only) when considered in the context of alternative structures. Those fundamental commonalties most notably included these five:

1. Little, if any, consideration of entity regulation or compliance-based regulation

As discussed in detail above, in neither England and Wales nor Australia were alternative structures adopted in isolation of other regulatory considerations. To the contrary, in both places, they were adopted in the context of significant modifications to, if not a transformation of, the larger regulatory framework. While such modifications (or transformations) were comprised of a number of elements, two of the most essential were: (i) the adoption of a scheme to regulate entities in addition to individual lawyers, and (ii) a move away from proscriptive, rules-based regulation in favor of compliance-based regulation (also termed “proactive, management based regulation,” or, in England and Wales, “outcomes focused regulation”).

In the US as well as in Canada, a number of objections to alternative structures have been raised. While the objections vary in nature, many of them are in essence driven by a concern as to how alternative structures can be regulated, and, in particular (but not only), how they can be regulated to ensure compliance with ethical standards. Compliance-based entity regulation responds directly to that concern.

While the experiences of the Canadian provinces are not yet conclusive, they strongly indicate that the adoption of alternative structures in isolation of other regulatory modifications, and notably of these two essential ones, is nearly if not entirely impossible. In Ontario, alternative structures, as an isolated proposal, was simply too contentious and proved impossible to debate without provoking a myriad of strong emotions. In contrast, the (albeit as yet unfinished) experience of Manitoba and the other Prairie provinces demonstrates that when the discussion of alternative structures expressly recognizes that they are “intimately connected” with both entity regulation and compliance-based regulation, the resulting discussion can be productive rather than fruitlessly contentious and emotional. Finally, as the (also as yet unfinished) experiences of Nova Scotia and British Columbia demonstrate, the elements of entity regulation and compliance-based regulation can, in a first step, be discussed and adopted in a manner that is entirely divorced from alternative structures, and in isolation from them. In this manner, should either province decide at a later date to address the topic of alternative structures, much of the preliminary work needed to adopt them will already be done, and, especially, the concern as to how they will be regulated will already be addressed.

When the 20/20 Commission created Working Groups in February, 2010, it initially called one of them “Law Firm Regulation/Alternative Business Structures Working Group,”[12] or, alternatively, “Entity Regulation/Alternative Business Structures Working Group.”[13] At a meeting held in April, 2010, that Working Group reported back to the Commission that it had “initially decided to focus first on issues relating to law firm/entity regulation. It will also move forward contemporaneously with its study and analysis of developments relating to alternative business structures.”[14] However, the minutes of the Commission’s meetings (at least, the minutes that are available to the public) make no further mention of either law firm or entity regulation until a meeting held in February, 2011. The minutes of that meeting simply state that the Commission agreed with the Entity Regulation Subcommittee that “there was insufficient evidence” to proceed further with the development of a proposal regarding proactive, management based regulation. Instead, the Commission recommends that the Entity Regulation/Alternative Business Structures Working Group develop a White Paper on how to “help lawyers and law firms think more systematically about how to better serve clients.”[15]

There is nothing in the public record that sheds light on exactly what evidence the Commission considered in order to draw such a conclusion. Further, there is nothing in the public record suggesting that the recommended follow-up work was performed. In the minutes subsequent to this February, 2011 meeting, the relevant Working Group is referred to simply as the “Alternative Business Structures Working Group.”[16]

In its first (2014) Issues Paper, the Futures Commission included a single mention of “entity regulation and proactive risk-based management/compliance programs”[17] in its two-page list of about 35 questions. Of the more than 60 submissions that the Commission received in response, only three mentioned entity and/or compliance-based regulation in any meaningful way, two to briefly express support for each of them,[18] and one to remind the Commission that they can be adopted independently of alternative structures.[19]

After that, the Futures Commission itself did not mention compliance-based regulation again in any of its publicly available documents. It mentioned entity regulation just once more—in its December, 2015 Informational Report to the House of Delegates, in a list of the Commission’s ongoing work, it included a reference to “Ongoing discussion and study of additional regulatory opportunities, including but not limited to alternative business structures and entity regulation.”[20] (As discussed above, its Issues Paper Concerning Unregulated LSP Entities, the Commission uses the expression “entity regulation,” but it does so entirely divorced from the concept of the regulation of law firms as entities as well as from compliance-based regulation).

Based upon the publicly available documentation, it is clear that neither the 20/20 Commission nor the Futures Commission considered either entity or compliance-based regulation to be topics worthy of their focus. What is less clear is the extent to which they understood the importance of these topics in relation to alternative structures, as demonstrated first by the examples of England and Wales and Australia, and, later, by the examples of the various provinces of Canada. Either way, for each Commission, its failure to focus on these prerequisite topics guaranteed that it would be unable to address the topic of alternative structures in any productive manner.

2. Continued abdication by those who hold de jure power to regulate legal services (state supreme courts) in favor of the de facto (or quasi[21]) regulatory power exercised by the ABA [22]

Very generally speaking, it is the state supreme courts that hold the de jure authority (that is, the authority accorded by law) to regulate the legal profession, if not the legal services market as a whole (in many states, the supreme court shares that authority with a unified or integrated bar association).[23] From time to time the ABA reasserts that the authority to regulate lawyers, if not the legal services market as a whole, not only lies with state supreme courts or the judicial branch of government, but also that it should lie there.[24] The two Commissions repeated these assertions: The 20/20 Commission’s “Preliminary Issues Outline” opened with the words “In the United States, the highest court of each state and the District of Columbia has the authority to regulate lawyers within its borders.”[25] And in its Issues Paper Concerning New Categories of Legal Services Providers, the Futures Commission made a point of explaining that the paper’s concept of authorizing and regulating nonlawyer legal service providers “is consistent with the longstanding ABA policy in support of state-based judicial regulation of the legal profession.”[26]

However, while the pertinent legal texts might place this regulatory power in the hands of the state supreme courts (and while the ABA might from time to time repeat the mantra that it does), the reality of how the power is exercised is entirely different. As discussed in part I, state supreme courts are highly deferential to the positions taken by the organized bar, and, in particular, to the positions taken by the ABA House of Delegates.[27] It is rare for a state supreme court to adopt a regulatory measure that was not proposed to it, if not directly by the national organization of the ABA, then indirectly through a state or local bar association, acting at the state level on the behest of the ABA. It is equally rare for a state supreme court to not adopt the regulatory measures that such bar associations do propose to it. In this manner, state supreme courts effectively abdicate their regulatory power to the ABA and to the state and local bar associations (again, for the most part acting at the ABA’s behest).[28]

Specifically in relation to the work of the 20/20 and the Futures Commissions, some documents evidence this abdication of regulatory power:

  • In a written submission dated July 5, 2010, Sally Evans Lockwood, Director of Admissions for the Office of Bar Admissions of the Supreme Court of the State of Georgia, wrote to the 20/20 Commission to acknowledge that she was aware that the Commission was considering certain proposals on the topic of foreign lawyers practicing in the US, and to assure the Commission that the State Bar of Georgia and well as the Georgia Supreme Court not only had already adopted prior ABA proposals in this regard, but also had already set in motion the procedure required to adopt the anticipated new ones.[29]
  • In a written submission dated October 4, 2012, Stephanie S. Libhart, Assistant Director of the Pennsylvania Interest on Lawyers Trust Account (IOLTA) Board of the Supreme Court of Pennsylvania wrote to the 20/20 Commission to “encourage” it to clarify the wording of a particular proposal under consideration by the Commission in order to assure that the proposal did not, presumably unintentionally, “interfere” with some of the state’s existing practices—practices that, questions of wording aside, Libhart made a point of explaining already complied with the spirit and intention of the proposals in question. (The proposal related to the attribution of the fees paid by out-of-state lawyers requesting temporary permission to appear on behalf of a client in that state, a procedure known as “Pro Hac Vice Admission”).[30]
  • In a written submission dated December 21, 2015, Paul Burgoyne, President of the National Organization of Bar Counsel (NOBC, whose website describes it as an organization “whose members work in the regulation of the practice of law.”[31]), wrote to the Futures Commission to state that it “takes no position” with respect to the question of new categories of legal services providers that was under consideration by the Commission. Instead, he wrote “it is appropriate for the ABA to play a leadership role in evaluating and guiding the manner in which the delivery of legal services will be regulated so that all US jurisdictions can make informed decisions.” In that context, he was writing to offer up the NOBC’s members as an “invaluable resource” for the Commission, as “eager to assist in all aspects of the ABA’s work to improve judicial regulation of the practice of law.”[32] (This comment is particularly ironic given that in its August, 2016 Final Report, the Futures Commission kicked responsibility for this issue to the courts).[33]
  • At its Midyear Meeting on February 3, 2016 (just a few days before the ABA House of Delegates adopted the Futures Commission’s proposal with respect to regulatory objectives), the Conference of Chief Justices (CCJ) adopted “Resolution 9: Recommending Consideration of ABA Model Regulatory Objectives for the Provision of Legal Services.” (By way of reminder, the CCJ brings together the highest judicial officer in each state, typically the Chief Justice. The Chief Justice presides over the state’s Supreme Court). In this Resolution of its own, the CCJ begins by explaining that the Futures Commission “concluded that the development of regulatory objectives is a useful step to guide state supreme courts and bar authorities as they assess the existing regulatory framework and identify and implement regulations related to legal services beyond the traditional regulation of the legal profession.” The Resolution then repeats the list of Model Regulatory Objectives that had been developed and proposed by the Future Commission, and recommends that the members of the CCJ (that is, state supreme court justices) consider the objectives in the manner intended by the Commission (that is, “as a means to help assess the state’s existing regulatory framework and to help identify and implement regulations related to legal services beyond the traditional regulation of the legal profession”[34]).

In the documents described above, state judicial authorities, acting either individually (in these specific cases, the Supreme Courts of Georgia and of Pennsylvania), or collectively through the NOBC and the CCJ, demonstrate in an unequivocal manner their failure to exercise their regulatory powers, instead deferring to the processes and the “policy” decisions of the ABA. The Supreme Court of Georgia wrote for no other reason than to affirm its past and future compliance with ABA dictates, without questioning those dictates in any manner, or even appearing to contemplate that they might question them. The Supreme Court of Pennsylvania “encouraged” the ABA to amend its proposed text in order to not cause confusion with existing Pennsylvania practices—such an “encouragement” would be unnecessary if the Supreme Court of Pennsylvania considered itself to be free to amend, or, indeed, to not adopt at all, ABA dictates. The NOBC all but bowed before the ABA, in stating that it “takes no position” but that, instead, “it is appropriate for the ABA to play a leadership role.” Finally, the CCJ, in recommending state supreme courts to consider the ABA’s regulatory objectives, underscored the fact that it failed to develop any of its own (as did each of the other state supreme courts other than that of Colorado).

These documents (among others) evidence that, regardless of what the applicable legal texts may state and that the ABA may claim to the contrary, much of the real power to regulate the legal profession as well as legal services in the US lies principally with the ABA. While state supreme courts and other state judicial authorities have the de jure power, for the most part they fail, for whatever reason(s), to exercise it, leaving a regulatory vacuum open for the ABA to fill. However, in filling the vacuum, the ABA hides behind assertions that the power lies with state judicial authorities. In doing so, the ABA is able to deflect any argument that it should conduct itself as a true and effective regulatory authority—one that acts in a fully transparent manner and is accountable not to its members or to state and local bar associations, but to the public as a whole.[35] This abdication on the part of state judicial authorities combined with this duplicity on the part of the ABA have a number of consequences, two of which are discussed immediately below.

(The 20/20 Commission was open about this duplicity: Even if its Preliminary Issues Outline opened with the words “In the United States, the highest court of each state and the District of Columbia has the authority to regulate lawyers within its borders,” the 20/20 Commission went on to repeat on multiple occasions that in its work it adhered to three “guiding principles,” one of which was “maintaining a strong, independent, and self-regulating legal profession”[36]).

3. Lack of transparency

The 20/20 Commission reported that, at its first meeting in September, 2009, “the Commission agreed that transparency…would be crucial.”[37] On several later occasions the 20/20 Commission repeated an intention to act with transparency.[38] However, in practice, the 20/20 Commission barely made a pretense of transparency. A prime example is the Commission’s decision making process with respect to alternative structures. As described in detail above, the Commission made a series of decisions in their regard without ever explaining its decision-making criteria and without providing any explanation of its decisions beyond statements such as “these subjects are better suited for a White Paper,”[39] “there was insufficient evidence to proceed further,”[40] and “the case had not been made.”[41] While the Commission released minutes for some of its meetings, it failed to do so for a number of others, and the ABA even refused to provide them in response to a specific request.

Kenneth Grady, CEO of SeyfarthLean Consulting, described the ABA in general, and the work of the 20/20 Commission in particular, in this manner:

I have trouble concluding the ABA is following [a transparent, fact-based and unbiased] process. The materials I have read do not include standards for analyzing the issue, data about the performance of schemes with or without ABS, or descriptions of the data needed to decide the issue. Nevertheless, the position of the ABA is that “the case for making changes has not been made.”[42] …  Put simply, the public cannot understand what would permit the ABA to permit ABS arrangements. This opaque process makes it difficult to build public trust and supports the perception that a decision on the issue will be made behind closed doors to a politics and emotion process.[43]

It is tempting to argue that the Futures Commission acted in a more transparent manner. Evidence of this could be found, for example, in the large amount of materials posted on the Commission’s website (videotaped presentations, webinar, written submissions,…) and the Commission’s efforts to facilitate a large number of what it termed “grassroots meetings,” which the Commission described as “local conversations [to] create new avenues for access to justice for all and open doors to new career opportunities for current and future lawyers.”[44]

However, a closer examination reveals that the Futures Commission was hardly more transparent than the 20/20 Commission. Examples of this include the Futures Commission’s failure to explain its reasons for deciding to propose regulatory objectives as opposed to any other proposal it could have made, especially given that its 2014 Issues Paper did not even mention them. Further, the limited information on the Commission’s website makes it impossible to fully understand the consultation process that the Commission followed with respect to the topic of regulatory objectives—based upon the information that is provided, it appears that only a small number of groups and individuals, namely ABA entities, state and local bar associations and a law school professor, were asked or even put in a position to be able to provide comments before the Commission submitted its Report to the House of Delegates. Another example of the Future Commission’s lack of transparency is that its prominently publicized May, 2015 “National Summit” was organized (with Stanford Law School) on an “invitation only” basis. At no point did the Commission publicly explain its criteria for selecting the persons who were invited to speak or to attend, nor was a list of attendees ever made public. Finally, and perhaps especially, none of the minutes of the Commission’s meetings has been made available to the public. Without them, it is impossible to have any insight into the processes the Commission followed or the decision-making criteria it applied. Especially it is impossible to critique them.

If the ABA were, as its website describes, nothing more than a “voluntary professional association” with a primary goal of “serving our members,” it would be difficult for anyone except the ABA’s members to criticize this lack of transparency. However, the ABA is much more than that—rightly or wrongly, it is our country’s de facto regulator of the legal profession and of legal services. For this reason, its lack of transparency can and must be severely criticized. As discussed in detail in part I, transparency is an essential component under any definition of “good governance.” Further, the lack of transparency of this “quasi-regulator” flies in the face of the international commitments that the US has made and notably its commitment under the United Nations 2030 Agenda for Sustainable Development to develop “effective, accountable and transparent institutions at all levels.”[45]

4. Lack of empirical or evidence-based research

The lack of any empirical or evidenced-based research was noted in comments submitted comments to both Commissions. For example, Douglas Richmond stated that the 20/20 Commission “has gathered absolutely no evidence that non-lawyer ownership in firms…is desired by any material percentage of United States lawyers…multiple anecdotes are not evidence.”[46] Richard Thies stated that the 20/20 Commission did not have “any evidence that there is a necessity for these changes other than the competition of the marketplace.”[47] A few years later, the Los Angeles County Bar Association asserted that the Futures Commission “must frame a data-driven proof of concept that meets the Commission’s stated ABS goals.”[48] The Defense Research Institute argued “there is no empirical evidence that greater access to justice has been achieved in jurisdictions that allow [for alternative structures].”[49]

The 20/20 Commission did not expressly acknowledge the calls for additional evidence and research, nor did it otherwise address the topic. In contrast, the Futures Commission did acknowledge it, stating that “ongoing, systematic research is an essential component of improving the quality and availability of legal services.”[50] At the same time, the Futures Commission lamented, “systematic research on the current delivery of legal services—especially services for ‘ordinary individuals’—is strikingly limited,”[51] and that “limited data has impeded efforts to identify and assess the most effective innovations in legal services delivery.”[52] However, the Futures Commission did not recommend that the ABA itself or other bar associations take steps to fill this gap, in whole or in part, by conducting its own research, because “it would be impossible” for them “to explore every potential innovation. Instead, the Commission recommended that the ABA’s role be confined to the collection, organization and centralization of ABS-related information and data.[53] As for who should actually conduct the research, the Futures Commission observed that “fortunately, academic and federal governmental interest in ‘access to justice’ research is increasing.” As a general matter, the Commission stated, it “strongly supports ‘evidence-based’ assessment of both new and existing forms of legal services delivery.”[54] In particular, “where ABS is allowed, evidence and data regarding the risks and benefits associated with these entities should be developed and assessed.”[55]

5. Treatment of certain questions—and one in particular—as taboo

During the course of their work, both the 20/20 and the Futures Commissions posed a large number of questions. The questions were by no means limited to the topic of alternative structures, but also addressed many other topics. For example, the 20/20 Commission asked questions about the conditions under which foreign lawyers should be allowed to practice in the US, whether virtual law firms are adequately regulated, the rules that should govern a lawyer’s involvement with alternative litigation financing, the ethical issues that arise from lawyers’ use of internet based client development tools, and the extent to which lawyers require guidance in their use of technology, notably to assure the confidentiality of client information. Examples of the questions the Futures Commission asked include how the legal profession can better serve clients and potential clients, what are the most important problems in the delivery of legal services and how can those problems be addressed, whether certain persons who do not have a JD and are not fully licensed lawyers should be permitted to provide limited legal services, and how can the legal profession address diversity and inclusion in the recruitment and retention of practicing lawyers.

Having posed those questions, each of the Commissions engaged in a consultation process in order to seek and discuss responses. The 20/20 Commission’s process was relatively closed, in that it consulted nearly exclusively with members of the legal profession: other ABA entities, state and local bar associations, judges, law school professors, and individual lawyers. In comparison, the Futures Commission was slightly more open in that it also invited persons it deemed to be “innovators”[56] to make presentations and make written submissions—that group, again, was composed principally of lawyers but also included a small number of nonlawyers (Colin Rule, Co-Founder and COO of Modria,[57] John Suh, CEO of LegalZoom,[58] Richard Barton, Co-founder and Executive Chairman of Zillow,[59] and Mark Britton, CEO of Avvo[60]).

Could the consultation process conducted by either Commission be described as “extensive?” That could be debated, both in regards to the questions each Commission posed and the persons and organizations it involved in its search for responses. Regardless of the outcome of that debate, there is at least one fundamental question that neither Commission dared to pose, and certain persons and organizations that neither dared to involve in the consultation process—persons who in all likelihood would have raised that question as well as offered their responses to it.

That question is this: to what extent does the role the ABA and state and local bar associations play in excluding nonlawyers, be they individuals or nonlawyer-owned organizations, from the legal services market violate unfair competition and antitrust laws and policies?

Concerns about the anti-competitive or antitrust nature of certain actions and policies of the ABA and of state and local bar associations had been raised well before the 20/20 Commission was convened in 2009. Examples include:

  • The Federal Trade Commission (FTC) and the Department of Justice, who, on a large number of occasions over a period of decades,[61] have opined that practice rules proposed by bar organizations, notably proposed rules that define the practice of law, “unduly restrain competition” with the result of “forc[ing] consumers to pay increased prices.” [62]
  • The American Antitrust Institute (AAI), who, as far back as 2000, argued that the ABA’s repeated refusal to lift its ban on multidisciplinary practices “raise[s] serious issues of our national policy favoring competition and consumer choice, rising even to the level of a possible violation of the antitrust laws.”[63]
  • In 2003 (six years before he was appointed Chief Reporter for the 20/20 Commission and eleven years before he was appointed Vice Chair of the Future Commission), Andrew Perlman wrote that “the ABA’s structural rules—the rules that have the most to do with the business aspects of the profession—have emphasized self-protection and public image at the expense of more appropriate emphases.”[64] In a second article published in 2004, Perlman recounts a history, notably since the Great Depression, of bar associations engaging in economic protectionism, in that case specifically with respect to admission rules for out-of-state lawyers.[65]

In February, 2015, just a few months after the Futures Commission began its work, these already repeatedly raised concerns were raised again, this time by no less than the US Supreme Court, in its decision North Carolina Board of Dental Examiners v. FTC. In this case, the North Carolina dental board, consisting mostly of practicing dentists, took certain actions to keep non-dentists from offering teeth-whitening services in North Carolina. The FTC sued the dental board under federal antitrust laws, claiming anticompetitive conduct. However, the issue before the Supreme Court was not if the actions of the dental board were anticompetitive. Instead, the issue was whether the dental board was acting under a doctrine that would give it, as a “state actor,” immunity from claims of anti-competitive conduct in violation of federal antitrust law. The dental board claimed that is was a state actor and thus was eligible for such immunity, on the grounds that an act of the North Carolina legislature appointed the dental board as the “agency of the State for the regulation of the practice of dentistry.”[66] The Court, however, disagreed, stating that “active market participants cannot be allowed to regulate their own markets free from antitrust accountability” and that “prohibitions against anticompetitive self-regulation by active market participants are an axiom of federal antitrust policy.” Additionally, the Supreme Court stated “The question is not whether the challenged conduct is efficient, well-functioning, or wise… [t]he question is whether the State’s review mechanisms provide ‘realistic assurance’ that a [private party]’s anticompetitive conduct ‘promotes state policy, rather than merely the party’s individual interests.’”[67]

While this case involved the dental rather than the legal profession, the decision of the court is highly pertinent for the legal profession, and for legal services more generally. It places anti-competitive actions by any group of “active market participants”—such as bar associations—under intensified scrutiny.[68] Its relevance has not gone unnoticed by the ABA, which created a page on its website devoted exclusively to the case and the issues it raises with respect to legal services.[69] This page contains links to articles opining on those very issues. For example, acting as a guest columnist in Forbes magazine, Ken Friedman, Vice President of Legal and Government Affairs for LegalZoom, wrote:

The Court’s ruling recognizes that letting professionals enforce their own monopolies creates a “real danger” that they will act to further their “own interests,” rather than the public interest. These practices increase prices to the detriment of consumers while decreasing consumer choice. The Court recognized that the problem is far worse when the boundaries of the state-granted monopoly are not “clearly articulated and affirmatively expressed as state policy,” and the professionals are given the power to decide what is the “unauthorized practice” of their profession…

Bar associations across the country use their power to limit competition. For example, states prohibit law firms from including non-lawyer partners or accepting investment from non-attorneys. Bars justify these rules arguing they are necessary to maintain independence and lawyer loyalty to clients, but they cannot point to evidence of harm should a lawyer partner with an accountant, engineer, or outside investor. In the United Kingdom and Australia, where those rules have been relaxed, there have not been reports of such harm.

What this really boils down to is reversing actions by state bars that have blocked people from getting the legal help they need.[70]

A May, 2015 article appearing in the ABA Journal quoted Professor Deborah Rhode of Stanford Law School as follows:

[I]t is hard to characterize this decision as narrow…I think it signals the willingness of the court to look behind the facade of state-action doctrine to determine whether there is real anticompetitive activity benefiting the members [of the regulated group] …I think the legal profession needs to take a hard look at its own activities in the area of the unauthorized practice of law… It would be a good thing if it did so.[71]

In North Carolina Board of Dental Examiners v. FTC, the Supreme Court stated that “[t]he question is whether the State’s review mechanisms provide ‘realistic assurance’ that a [private party]’s anticompetitive conduct ‘promotes state policy, rather than merely the party’s individual interests.’”[72] The documents described in (2) above issued by the Supreme Courts of Pennsylvania and of Georgia and by the NOBC and CCJ evidence that, with respect to the regulation of legal services, it would be impossible for a state’s review mechanism to provide any kind of “realistic assurance” because, in fact, there is no state review mechanism to speak of—the regulators have abdicated their regulatory responsibilities to persons who can only be described as “active market participants.”

Of course, it is possible to disagree with these observations. For example, a counterargument might be asserted that it is state supreme courts that have the de jure right to regulate legal services, and at any moment they could simply choose to exercise greater oversight over the work of the ABA and state and local bar associations.

The question of whether or not, in the end, any one or more actions or policies of the ABA or any state or local bar association effectively does, in any final analysis, violate unfair competition or antitrust laws or policies, is an important one. But it’s not the focus of this discussion. The focus of this discussion is that both Commissions failed to raise the question. They failed to do so even though Judy Martinez, the Chair of the Future Commission, stated that “nothing is off the table,” even ideas that seemed too radical.[73] They failed to do so even though, over a period of many years, a number of persons and organizations, including Andrew Perlman (the Chief Reporter of the 20/20 Commission and the Vice Chair of the Futures Commission) and the US Supreme Court, had put the question on the table. Those persons and organizations had put the question on the table in a repeated manner and for legitimate and justified reasons. Yet, in the plethora of questions that both the 20/20 and the Futures Commissions posed, not one acknowledged this fundamental issue or attempted to initiate a discussion in its regard. Further, there is nothing in the public record demonstrating that in the course of their respective consultation processes either Commission sought the input of, for example, experts in antitrust and unfair competition from the FTC, the US Department of Justice,[74] or the AAI. They, presumably, would not have hesitated to put the question on the table, or to provide their responses to it.

To the contrary, on the home page of its website, the Futures Commission affirms that “The American Bar Association (ABA) is well-positioned to lead the effort to improve the delivery of, and access to, legal services in the United States.”[75] In December, 2015, ten months after the North Carolina decision, the Futures Commission repeated this assertion in its Informational Report to the House of Delegates,[76] and in August, 2016 it again repeated it in its Final Report.[77]

It is easy to understand why both Commissions chose to ignore the question. Indeed, back in 2004, Clementi predicted this choice, when he stated it is “particularly difficult for professional bodies that combine both regulatory and representative roles to deal with competition issues.”[78] Raising the question would have invited criticism of the organization itself. It might have placed into question the very legitimacy of the Commissions, and it could have led to a loss of some or all of the ABA’s de facto or quasi regulatory power. Very few organizations have the necessary courage to voluntarily initiate such discussions.[79] At the same time, however, the fact that the ABA fails to raise much less to address a question that is highly central to the debate of how to better deliver legal services demonstrates the incongruity, if not the absurdity, of entrusting the debate to the ABA. As long as there are highly relevant questions that the ABA regards as taboo, and as long as there are persons and organizations the ABA is not willing to involve in its consultation processes, out of fear that they might raise (and respond to) those taboo questions, both the effectiveness and the integrity of the debate are necessarily compromised.

This chapter is an excerpt from Modernizing Legal Services in Common Law Countries: Will the US Be Left Behind? To learn more about the book, please click here.

Notes

[1] ABA Commission on the Future of Legal Services, “National Summit on Innovation in Legal Services,” accessed March 20, 2017, http://www.americanbar.org/groups/centers_commissions/commission-on-the-future-of-legal-services/national_summit.html.

[2] ABA Commission on the Future of Legal Services, “Upcoming & Past Events,” accessed March 17, 2017, http://www.americanbar.org/groups/centers_commissions/commission-on-the-future-of-legal-services/events-new.html.

[3] Charles Harrington, “Customer Service and the Courts,” slides at: http://www.americanbar.org/content/dam/aba/images/office_president/charles_harringon_focus_on_the_client_slides.pdf and video presentation at: http://bcove.me/p38g7l0m.

[4] Keith McLennan, ABA Standing Committee on Group & Prepaid Legal Services and Group Legal Services Association, video presentation: http://bcove.me/ki6oyi77.

[5] Stephen R. Crossland, “Limited License Legal Technician Program,” slides at http://www.americanbar.org/content/dam/aba/images/office_president/stephen_crossland_programs_to_bridge_the_gap_slide.pdf and video presentation at: http://bcove.me/6wa30tz8.

[6] Andrew Perlman, “Innovation in Legal Education,” slides at: http://www.americanbar.org/content/dam/aba/images/office_president/andy_perlman_programs_to_bridge_the_gap_slides.pdf and video presentation at: http://bcove.me/ygsgfnp4.

[7] Alex R. Gulotta, video presentation at: http://bcove.me/kjkazo82.

[8] Gillian Hadfield and Larry Fox, “Regulating the Future Delivery of Legal Services,” webinar, http://bcove.me/la7z1w1b.

[9] See ABA Commission on Ethics 20/20, “House of Delegates Filings,” http://www.americanbar.org/groups/professional_responsibility/aba_commission_on_ethics_20_20/house_of_delegates_filings.html.

[10] Terry, “Globalization and the ABA Commission on Ethics 20/20,” 113.

[11] “[Draft] Regulatory Objectives of the Supreme Court of Colorado,” November 12, 2015, http://www.americanbar.org/content/dam/aba/images/office_president/supreme_court_of_colorado.pdf;

[12] ABA Commission on Ethics 20/20, “Minutes,” February 4, 2010, 9.

[13] ABA Commission on Ethics 20/20, “Minutes,” April 29, 2010, 7.

[14] Ibid.

[15] ABA Commission on Ethics 20/20, “Minutes,” February 10, 2011, 6-7.

[16] ABA Commission on Ethics 20/20, “Minutes,” April 15-16, 2011, 8-9; ABA Commission on Ethics 20/20, “Minutes,” June 13, 2011, 7.

[17] ABA Commission on the Future of Legal Services, “Issues Paper on the Future of Legal Services,” 3.

[18] Chas Rampenthal and James Peters (LegalZoom). Task Force on the Evolving Business Model of Law Firms.

[19] ABA Standing Committee on Professional Discipline.

[20] ABA Commission on the Future of Legal Services, “Informational Report to the House of Delegates,” 3.

[21] Laurel Terry describes the ABA as a “quasi-regulator.” Terry, “Globalization and the ABA Commission on Ethics 20/20,” 95.

[22] For a detailed discussion of the abdication of regulatory power by state supreme courts in favor of the ABA and other bar associations, see Snyder, Democratizing Legal Services, 199-206.

[23] See, for example, Judith L. Maute, “Global Continental Shifts in a New Governance Paradigm,” 30.

[24] See, for example, American Bar Association, “Lawyer Regulation for A New Century,” accessed March 20, 2017, http://www.americanbar.org/groups/professional_responsibility/resources/report_archive/mckay_report.html.

[25] ABA Commission on Ethics 20/20, “Preliminary Issues Outline,” November 19, 2009, 1, http://www.americanbar.org/content/dam/aba/migrated/ethics2020/outline.authcheckdam.pdf.

[26] ABA Commission on the Future of Legal Services, “Issues Paper Concerning New Categories of Legal Services Providers,” 1.

[27] See, for example, Barton, “The Lawyer’s Monopoly,” 3080-81.

[28] Benjamin Barton provides a detailed and interesting analysis of the extent to which state supreme courts abdicate their regulatory power and the multiple motivations they have to do so: Benjamin H. Barton, “An Institutional Analysis of Lawyer Regulation: Who Should Control Lawyer Regulation-Courts, Legislatures, or the Market?” Georgia Law Review 37 (2003): 1167-1250.

[29] Sally Evans Lockwood, Letter to ABA Commission on Ethics 20/20 Working Group on Inbound Foreign Lawyers, July 5, 2010, http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/ethics_20_20_comments/supremecourtofgeorgiaofficeofbaradmissions_inboundforeignlawyersmemorandaandtemplate.authcheckdam.pdf.

[30] Stephanie S. Libhart, Letter to ABA Commission on Ethics 20/20, October 4, 2012, http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/ethics_20_20_comments/pa_iolta_board_of_the_supreme_court_comments_pro_hac_vice_admission.authcheckdam.pdf.

[31] “Mission Statement,” National Organization of Bar Counsel, accessed March 20, 2017, http://www.nobc.org/index.php/about-us/mission-statement.

[32] National Organization of Bar Counsel, “Comments to ‘Issues Paper Concerning New Categories of Legal Services Providers,’” December 21, 2015, http://www.americanbar.org/content/dam/aba/images/office_president/lspcomments_national_organization_of_bar_counsel.pdf.

[33] Futures Commission Final Report, 6.

[34] Conference of Chief Justices, “Resolution 9: Recommending Consideration of ABA Model Regulatory Objectives for the Provision of Legal Services,” February 3, 2016, https://richardzorza.files.wordpress.com/2016/02/ccj-2016-res-9.pdf.

[35] Barton discusses the lack of public accountability by judges who regulate legal profession in his article “An Institutional Analysis of Lawyer Regulation,” 1200-1204. For a detailed discussion of the ABA’s lack of public accountability, see Snyder, Democratizing Legal Services, 212-213.

[36] See, for example: American Bar Association, “Message from the Co-Chairs: Message from Commission on Ethics 20/20 Co-Chairs Jamie S. Gorelick and Michael Traynor,” accessed March 20, 2017, http://www.americanbar.org/groups/professional_responsibility/aba_commission_on_ethics_20_20/about_us/message_from_the_co_chairs.html; ABA Commission on Ethics 20/20,” Informational Report to the House of Delegates, February, 2010 and February, 2011, both available at: http://www.americanbar.org/groups/professional_responsibility/aba_commission_on_ethics_20_20/house_of_delegates_filings.html; ABA Commission on Ethics 20/20 Working Group on Alternative Business Structures, “For Comment: Issues Paper Concerning Alternative Business Structures, April 5, 2011, http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/abs_issues_paper.authcheckdam.pdf; Jamie S. Gorelick and Michael Traynor, “For Comment: Discussion Paper on Alternative Law Practice Structures,” December 2, 2011, http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/20111202-ethics2020-discussion_draft-alps.authcheckdam.pdf. See also a manifestation of this duplicity in this paragraph contained in the Preamble to the Model Rules:

The legal profession is largely self-governing. Although other professions also have been granted powers of self-government, the legal profession is unique in this respect because of the close relationship between the profession and the processes of government and law enforcement. This connection is manifested in the fact that ultimate authority over the legal profession is vested largely in the courts… To the extent that lawyers meet the obligations of their professional calling, the occasion for government regulation is obviated. http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_preamble_scope.html.

[37] ABA Commission on Ethics 20/20, “Outreach,” accessed March 20, 2017, http://www.americanbar.org/groups/professional_responsibility/aba_commission_on_ethics_20_20/outreach.html.

[38] ABA Commission on Ethics 20/20, “Preliminary Issues Outline,” 2; American Bar Association, “Message from the Co-Chairs: Message from Commission on Ethics 20/20 Co-Chairs Jamie S. Gorelick and Michael Traynor,” accessed March 20, 2017, http://www.americanbar.org/groups/professional_responsibility/aba_commission_on_ethics_20_20/about_us/message_from_the_co_chairs.html; ABA Commission on Ethics 20/20, “Report to the House of Delegates: Resolution 105A,” August, 2012, 10, http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/2012_hod_annual_meeting_105a_filed_may_2012.authcheckdam.pdf.

[39] ABA Commission on Ethics 20/20, “Minutes,” February 10, 2011, 6.

[40] Ibid.

[41] ABA Commission on Ethics 20/20, “ABA Commission on Ethics 20/20 Will Not Propose Changes.”

[42] Kenneth Grady, Video Testimony to the ABA Commission on the Future of Legal Services, 1:15 to 1:54, February, 2015, http://bcove.me/x9hwfqsq.

[43] Ibid., 3:22 to 3:38.

[44] ABA Commission on the Future of Legal Services, “Legal Services Grass Roots Resources,” accessed March 17, 2017, http://www.americanbar.org/groups/centers_commissions/commission-on-the-future-of-legal-services/legal-services-grass-roots-resources.html.

[45]  Agenda for Sustainable Development,” 25.

[46] Douglas R. Richmond, “Discussion Paper on Alternative Law Practice Structures,” January 6, 2012, 1-2, http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/ethics_20_20_comments/richmond_alpsdiscussiondraft.authcheckdam.pdf.

[47] Thies, Letter to the ABA Commission on Ethics 20/20, 3.

[48] Los Angeles County Bar Association, “Comment of the Los Angeles County Bar Association,” 3.

[49] DRI – The Voice of the Defense Bar, “Issues Paper Regarding Alternative Business Structures,” 2.

[50] Futures Commission Final Report, 18.

[51] Ibid., 5.

[52] Ibid., 18.

[53] Ibid., 43.

[54] Ibid., 18

[55] Ibid., 6.

[56] ABA Commission on the Future of Legal Services, “Informational Report to the House of Delegates,” 1-2, 6.

[57] Colin Rule, “Online Dispute Resolution: Expanding Access to Justice” (presentation to 2015 National Summit on Innovation in Legal Services, Stanford, California, May 3, 2015) http://www.americanbar.org/content/dam/aba/images/office_president/colin_rule_programs_to_bridge_the_gap_slides.pdf; video of presentation at: http://bcove.me/aysp906c.

[58] John Suh, “Democratizing Law” (presentation to 2015 National Summit on Innovation in Legal Services, Stanford, California, May 4, 2015), http://www.americanbar.org/content/dam/aba/images/office_president/john_suh_slides.pdf.

[59] Richard Barton, May 4, 2015 video of presentation available at: http://bcove.me/k5xf2812.

[60] Mark Britton, “Avvo: National Summit on Innovation in Legal Services” (presentation to 2015 National Summit on Innovation in Legal Services, Stanford, California, May 3, 2015) http://www.americanbar.org/content/dam/aba/images/office_president/mark_britton_challenges_to_innovation_slides.pdf; video of presentation at http://bcove.me/vz01uvx2.

[61] A list of links to such opinions is accessible at ABA Center for Professional Responsibility, “FTC Letter Opinions on the Unlicensed Practice of Law,” accessed March 20, 2017, http://www.americanbar.org/groups/professional_responsibility/resources/client_protection/ftc.html. See also, for example, Thomas R. Andrews, “Nonlawyers in the Business of Law: Does the One Who Has the Gold Really Make the Rules?” The Hastings Law Journal 40 (1989): 617-621.

[62] Federal Trade Commission and US Department of Justice, Letter to Kansas Bar Association, February 4, 2005, 1-2, https://www.ftc.gov/sites/default/files/documents/advocacy_documents/ftc-and-department-justice-comment-kansas-bar-association-concerning-proposed-definition-practice/v050002.pdf.

[63] American Antitrust Institute, “AAI Says Legal Profession’s Recommendations on Multidisciplinary Practices May Violate Antitrust Laws,” February 8, 2000, http://www.antitrustinstitute.org/content/aai-says-legal-professions-recommendations-multidisciplinary-practices-may-violate-antitrust.

[64] Andrew M. Perlman, “Toward a Unified Theory of Professional Regulation,” Florida Law Review 55 (2003): 999, http://dx.doi.org/10.2139/ssrn.449200.

[65] Andrew M. Perlman, “A Bar Against Competition: The Unconstitutionality of Admission Rules for Out-of-State Lawyers,” Georgetown Journal of Legal Ethics 18 (2004): 148-150, http://ssrn.com/abstract=664194.

[66] North Carolina State Board of Dental Examiners v. Federal Trade Commission, February 25, 2015, 6, http://www.supremecourt.gov/opinions/14pdf/13-534_19m2.pdf.

[67] Ibid., 2, 8-9.

[68] See, for example, Hadfield and Rhode, “How to Regulate Legal Services,” 1194-1195, 1214-1215. See also Ken Friedman, “Could Dental-Board Decision Unlock Lawyer Control of State Bar Regulations?” Forbes, March 4, 2016, http://www.forbes.com/sites/danielfisher/2015/03/04/dental-board-decision-could-unlock-lawyer-control/#75de2e7b68cf.; and Tamara Tabo, “What Lawyers Must Learn From Dentists About The Unauthorized Practice Of Law,” Above the Law, March 2, 2015, http://abovethelaw.com/2015/03/what-lawyers-must-learn-from-dentists-about-the-unauthorized-practice-of-law/?rf=1.

[69] ABA Center for Professional Responsibility, “North Carolina Board of Dental Examiners Decision Resources,” accessed March 17, 2017, http://www.americanbar.org/groups/professional_responsibility/resources/client_protection/north-carolina-board-of-dental-examiners-decision-resources.html.

[70] Friedman, “Could Dental-Board Decision Unlock Lawyer Control of State Bar Regulations?”

[71] Mark Walsh, “Dental Board Ruling May Drill into State Bar Associations’ Immunity,” ABA Journal, May 1, 2015, http://www.abajournal.com/magazine/article/dental_board_ruling_may_drill_into_state_bar_associations_immunity.

[72] North Carolina State Board of Dental Examiners v. Federal Trade Commission, 9.

[73] Marilyn Cavicchia, “Which Way Forward?: National Conference of Bar Presidents Discusses Possible Futures for the Profession and for Bar Associations,” Bar Leader 39 (March-April 2015) http://www.americanbar.org/publications/bar_leader/2014-15/march-april/which-way-forward-national-conference-bar-presidents-discusses-possible-futures-profession-bar-associations.html.

[74] Lisa Foster, Director of the Office for Access to Justice of the US Department of Justice, reportedly met with representatives of the Futures Commission on at least one occasion. She does not have expertise in antitrust or unfair competition law. It appears that she did not raise issues of antitrust or unfair competition but instead “called for each state to develop its own legal help portal, where users could post a legal problem or question and get directed to potential answers.” “Highlights from the ABA’s National Summit on Innovation in Legal Services,” 3 Geeks and a Law Blog, June 4, 2015, http://www.geeklawblog.com/2015/06/highlights-from-abas-national-summit-on.html. See also James Podgers, “Lots of Ideas, But No Single Theme at Commission on the Future of Legal Services’ Public Hearing,” ABA Journal, February 7, 2015, http://www.abajournal.com/news/article/lots_of_ideas_but_no_single_theme_at_commission_on_the_future_of_legal_serv; “Lisa Foster: Director, Office for Access to Justice, U.S. Department of Justice,” accessed March 18, 2016, http://www.americanbar.org/content/dam/aba/images/office_president/foster_short_bio.pdf.

[75] Commission on the Future of Legal Services, “Background,” accessed March 20, 2017, http://www.americanbar.org/groups/centers_commissions/commission-on-the-future-of-legal-services.html.

[76] ABA Commission on the Future of Legal Services, “Informational Report to the House of Delegates,” 1.

[77] Futures Commission Final Report, 9.

[78] Clementi Report, 29.

[79] That being said, and in stark contrast to the ABA, the Legal Services Board of England and Wales has expressly placed on its agenda “our proposal for how the LSB and other regulators can be phased out over time.” Legal Services Board, “LSB Publishes Annual Report for 2013/14,” June 10, 2014, http://www.legalservicesboard.org.uk/news_publications/LSB_news/PDF/2014/20140610_LSB_Annual_Report_Published.htm.

Modernizing Legal Services

Ch 20 Indestructible Model Rule 5.4

Indestructible Model Rule 5.4

Goal 1 of the ABA is to serve its members and such changes would not. Paula Hudson Holderman

After the Great Depression and World War II, the first significant challenge to the restrictions on who may own and control organizations that provide legal services came in 1982, by the Commission on Evaluation of Professional Standards (the “Kutak Commission,” which revamped the Model Code to develop the Model Rules). In that year, the Kutak Commission proposed a draft of Model Rule 5.4 permitting nonlawyer ownership of law firms as well as multidisciplinary practices, provided that certain safeguards were in place, and notably that “there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship.”[1]

When this proposal was debated in the House of Delegates, the question was asked: “Does this mean Sears can open a law firm?” “Yes,” responded Geoffrey Hazard, the Reporter for the Commission. With that response, the proposal was swiftly and decisively voted down, in favor of the more restrictive Model Rule 5.4 that remains in place today.[2] (Actually, that remains in place today in all jurisdictions in the US except one: the District of Columbia. After the Kutak Commission the D.C. bar took its own path, ultimately  adopting a revised version of the draft proposed by the Kutak Commission—the Rule adopted in D.C. is more restrictive than the Kutak proposal, but still permits a form of nonlawyer ownership, in contrast to the rest of the United States. The rule in place in D.C. is further discussed below).

The next challenge occurred in the late 1990s. In reaction to the extent to which consulting firms had become associated with large accounting firms, an ABA Commission on Multidisciplinary Practices was appointed to study this association and to recommend any modifications to the ethical rules “that would serve the public interest.”[3]

In 1999, this Commission recommended to the House of Delegates that the Model Rules be amended to permit multidisciplinary practices, but again with safeguards in place, such as written undertakings to assure the independence of judgment of the lawyers.[4] The House of Delegates responded to this recommendation by adopting a resolution that no change will be made “unless and until additional study demonstrates that such changes will further the public interest without sacrificing or compromising lawyer independence and the legal profession’s tradition of loyalty to clients.”[5]

The Commission undertook additional study, after which, in 2000, it changed its recommendation to the House of Delegates: while still advocating for multidisciplinary practices, it suggested tighter restrictions, notably that such practices should be lawyer-controlled.[6]

In response, the House of Delegates adopted a resolution categorically refusing to amend the Model Rules to permit multidisciplinary practices in any form. The resolution stated, in part:

The sharing of legal fees with nonlawyers and the ownership and control of the practice of law by nonlawyers are inconsistent with the core values of the legal profession.

The law governing lawyers, that prohibits lawyers from sharing legal fees with nonlawyers and from directly or indirectly transferring to nonlawyers ownership or control over entities practicing law, should not be revised.[7]

The next challenge to Model Rule 5.4 began nine years later, in 2009.

Commission on Ethics 20/20: The Case Had Not Been Made

Cognizant of the reforms in England and Wales and Australia, in 2009 the President of the ABA created a new commission—the Commission on Ethics 20/20. This Commission was tasked to perform a review not only of alternative business structures and multidisciplinary practices, but of all the Model Rules “in the context of advances in technology and global legal practice developments.”[8]

The 17-member Commission was composed of practicing lawyers, judges and law school professors.[9] One of the first orders of business for the Commission in February 2010 was to appoint working groups, one of which was referred to as “Law Firm Regulation/Alternative Business Structures.”[10] This 7-member group was co-chaired by University of Arizona Professor Ted Schneyer and Sidley & Austin partner George Jones.[11]

According to the minutes of the Commission’s meeting held on April 29, 2010, Schneyer announced that the Working Group would “focus first on issues relating to law firm/entity regulation.” At the same time, the Working Group would “also move forward contemporaneously with its study and analysis of developments relating to alternative business structures.” According to the minutes, Schneyer described “developments” in the UK and Australia, and notably how those countries had moved from “law firm discipline” to proactive, compliance-based regulation. Schneyer apparently further explained that Australia stresses “systemic controls designed to foster development of an ethical culture” in law firms, accompanied by a self-assessment, audit and compliance mechanism that is technology driven. In contrast, the minutes point out, the US “remains complaint based.”[12]

It seems, however, that over the course of the following months Schneyer was not convincing because the minutes of the Commission’s February 10, 2011 meeting state that the Commission decided that there was “insufficient evidence to proceed further” with consideration of a proposal for “New South Wales’ style proactive practice management regulation.” If either the Working Group or the Commission offered or discussed reasons for eliminating this option from further consideration, they are not reflected in the meeting minutes. As an alternative to pursuing this option, the Commission recommended that the Working Group and the ABA Standing Committee on Professional Discipline undertake further study “to help lawyers and law firms think more systematically about how to better serve clients.”[13] (The Commission’s documentation after this meeting accordingly reflects that the name of the Working Group was changed to “Alternative Business Structures”).

The minutes of the same February 10, 2011, meeting also state that the Working Group recommended that the Commission not submit to the House of Delegates a proposal that would allow “passive equity investment in law firms or the public trading in shares of law firms.” The Commission agreed with this recommendation. If either the Working Group or the Commission offered or discussed reasons for eliminating these possibilities from further consideration, they are not reflected in the meeting minutes except for the statement that “these subjects are better suited for a White Paper commending these issues to individual jurisdictions for further study.”[14]

On April 5, 2011, the Commission issued a paper “For Comment: Issues Paper Concerning Alternative Business Structures.” The 20-page paper first warns that the ABA has undertaken several previous efforts to examine alternative structures, and that “the Working Group’s efforts are necessarily informed by them.” That being said, the paper continues, even if since 2000 few jurisdictions in the United States have considered alternative structures, other countries have implemented a wide range of approaches. The paper continues, “The economic challenges of the intervening period also invite reconsideration of whether ABS might serve to enhance access to legal services for those unable to afford them, and to provide new and varied opportunities for lawyers and firms domestically to better serve their clients.”[15]

The paper then describes with certain detail the development of ILPs in Australia and ABSs in England and Wales and of multidisciplinary practices in Australia and Canada,[16] before touching briefly on related but significantly more limited developments in Scotland, Germany, Netherlands, Belgium and New Zealand.[17] The paper explains that in the opinion of the Working Group, the level of detail provided “will facilitate informed decision and comments about these issues.”[18] In spite of the detail, however, glaringly absent from the discussion paper is any direct reference to, let alone express discussion of, the concepts of either entity regulation (or law firm regulation) or proactive regulation (what Ted Schneyer would, in his law review article published two years later, call “proactive-management based regulation”[19]). To the extent the discussion paper addresses either concept, it does so only indirectly, in mentioning Australia’s ILPs and self-assessment process.

Prefaced with the explanation that the Commission had already excluded from consideration passive equity investment in law firms and public trading of shares of law firms,[20] the paper describes the three options the Working Group was evaluating, as follows:

In essence, the options were either (1) limited lawyer/nonlawyer partnerships with a cap on nonlawyer ownership and the nonlawyers would be subject to a “fit to own” test, (2) lawyer/nonlawyer partnerships with no cap on nonlawyer ownership but the firm could provide legal services only (no multidisciplinary services) and the nonlawyer partner(s) would be required to perform services for the firm (they could not be passive investors; as discussed further below, this option was considered to be the “DC approach”), or (3) the same as Option (2) except the firm could offer multidisciplinary services.[21]

The paper concludes by asking for input, with a deadline of June 1, 2011.[22]

The Commission held a meeting on 15-16 April, 2011—just days after the April 5, 2011 Discussion Paper was issued. At that meeting, Paul Paton, one of the Commission’s Reporters, stated that while no decision had yet been made, already “it appears that, based on the information collected thus far, the choice will be between Options 2 and 3.”[23] It is remarkable that such an observation would be made so quickly after the Issues Paper had been issued and so well in advance of the due date for the submission of comments.

The Commission received just six written submissions in response to its April 5, 2011 call for comments.[24] In brief, three submissions expressed opposition to alternative structures (those of the New York State Bar Association Standing Committee on Standards of Attorney Conduct, the US Chamber Institute for Legal Reform, and the German Federal Bar), two took no position on the subject (those of the ABA Standing Committee on Client Protection and the Legal Services Board of England and Wales) and one submission, that of Responsive Law, expressed strong support.

The minutes of the Commission’s June 13, 2011 meeting report on an “outreach” to other ABA groups, notably the General Practice, Solo and Small Firm Division and the Young Lawyers Division. The minutes describe the outcome of this process in an oddly contradictory manner. On the one hand, the minutes state that “there is no surprise that a number of lawyers are opposed to any changes to Model Rule 5.4.” On the other hand, these groups “showed an interest in having more tools to allow lawyers to innovate in how they ethically provide legal services to clients in the 21st Century. This is also a willingness to learn more about alternative business structures (ABS) and how they can help lawyers and clients.”[25] The minutes do not make an attempt to address this contradiction—however, assuming the willingness to learn more about ABS was genuine, any decision made at that point to oppose them would be premature.

It is notable that other than releasing the Issues Paper, there is no evidence that the Commission or the Working Group took any steps to seek or obtain input from outside the legal profession (indeed, even from outside the ABA and state bar associations). It is particularly notable that there is no evidence that the Commission or the Working Group sought input from persons who have experience and expertise in areas such as economic policy, human rights, competition, or consumer affairs.

The next public document issued by the Commission on the topic of “Alternative Law Practice Structures” is dated December 2, 2011. In this document, the Commission states that it has “conducted research to understand the questions presented by changing technologies and the increasingly borderless practice of law,” and that it has “engaged in extensive outreach and received helpful input.”[26]

In this document, the forms of nonlawyer ownership that the Commission had ruled out grew in number from two to four: to the previously excluded passive nonlawyer investment in law firms and the public trading of shares of law firms, the Commission added multidisciplinary practices (MDPs), and the D.C. approach of ABS.[27]

(As discussed below, D.C. permits nonlawyers to have an ownership interest in a law firm, on the condition that the firm provides legal services only—it is not an MDP— and that the nonlawyer provides services that assist the firm in providing legal services (no passive ownership). The D.C. approach does not place a cap on nonlawyer ownership (although, as seen below, regulators in D.C. esteem that a cap applies nonetheless), nor does it impose a “fit to own” test on nonlawyers).

The Commission did not offer any explanation as to why it had decided to rule out the option of MDPs since it had proposed it in its April 5, 2011 Issues Paper, beyond a mention that “the ABA had considered whether to permit MDPs in 1999-2000 and had strongly rejected the idea.”[28]

The Commission ruled out the D.C. approach in favor of a “narrower,” more restrictive approach, which was to require not only that the firm be engaged in legal practice only (not in combination with non-legal services) and that the nonlawyer provide services to assist the firm in providing legal services (again, no passive investment), but also imposing (i) a cap on nonlawyer ownership and (ii) a fit to own test on the nonlawyers.[29]

The Commission’s explanation for rejecting the D.C. approach in favor of a more restrictive approach was that the more restrictive approach is the “most modest” and it “would provide comparable opportunities for innovation and increased access to justice while offering stronger protections consonant with the core professional values of the broader US legal community.”[30]

In sum, in its December 2, 2011 paper, the Commission proposed this singular model for comment:

Rule 5.4 Professional Independence of a Lawyer

(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:

[…]

(4) a lawyer or law firm may do so pursuant to paragraph (b)

[…]

(b) A lawyer may practice law in a law firm in which individual nonlawyers in that firm hold a financial interest, but only if:

(1) the firm’s sole purpose is providing legal services to clients;

(2) the nonlawyers provide services that assist the lawyer or law firm in providing legal services to clients;

(3) the nonlawyers state in writing that they have read and understand the Rules of Professional Conduct and agree in writing to undertake to conform their conduct to the Rules;

(4) the lawyer partners in the law firm are responsible for these nonlawyers to the same extent as if the nonlawyers were lawyers under Rule 5.1;

(5) the nonlawyers have no power to direct or control the professional judgment of a lawyer, and the financial and voting interests in the firm of any nonlawyer are less than the financial and voting interest of the individual lawyer or lawyers holding the greatest financial and voting interests in the firm, the aggregate financial and voting interests of the nonlawyers does not exceed [25%] of the firm total, and the aggregate of the financial and voting interests of all lawyers in the firm is equal to or greater than the percentage of voting interests required to take any action or for any approval;

(6) the lawyer partners in the firm make reasonable efforts to establish that each nonlawyer with a financial interest in the firm is of good character, supported by evidence of the nonlawyer’s integrity and professionalism in the practice of his or her profession, trade or occupation, and maintain records of such inquiry and its results; and

(7) compliance with the foregoing conditions is set forth in writing.

(c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services. [31]

In proposing this model, the Commission asked for comments, and received 24 written submissions in response.[32] Of these, 15 expressed opposition to the Commission’s proposal,[33] one commentator was partially opposed and partially in favor,[34] one submission expressed “no objection,”[35] and four submissions expressed favor or strong favor[36] (of those, two said the proposal did not go far enough[37]). Of the remaining three, two sought clarification on the status of lawyers who practice in association with firms based in jurisdictions that permit alternative structures,[38] and the position expressed in the final submission is unclear.[39]

As was the case with the prior (April 5, 2011) Issues Paper, there is no evidence that the Commission or the Working Group took any steps to seek or obtain input from outside the legal profession (indeed, even from outside the ABA and state bar associations). It is, again, particularly notable that there is no evidence that the Commission or the Working Group sought input from persons who have experience and expertise in areas such as economic policy, human rights, competition, or consumer affairs.

On April 16, 2012, the Commission issued a one-page paper stating that:

At its meeting on April 12-13, 2012,[40] the [Commission] decided not to propose changes to the ABA policy prohibiting nonlawyer ownership of law firms … The Commission considered the pros and cons, including thoughtful comments that the changes recommended in the [December 2, 2011 paper] were both too modest and too expansive, and concluded that the case had not been made for proceeding with even a form of nonlawyer ownership that is more limited than the D.C. model.[41]

The Commission would, it explained, continue to consider how to provide practical guidance in relation to choice of law problems that arise because D.C. and a growing number of jurisdictions outside the US permit nonlawyer ownership of law firms.[42] (Later, on August 19, 2013, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 464, which clarifies that a lawyer subject to Model Rule 5.4 may share fees with a law firm practicing in a jurisdiction that permits nonlawyer ownership, even if those fees might be distributed to a nonlawyer, provided that there is no interference with the lawyer’s independent professional judgment).[43]

Andrew Perlman acted as the Chief Reporter of the Commission, and in that role he had a front-row seat to the Commission’s activities. In his 2015 article “Towards the Law of Legal Services,” Perlman writes: “History offers a useful guide as to why the ABA House of Delegates was highly likely to reject any changes proposed by the Commission in this area. Since the Model Rules were adopted more than thirty years ago, the House of Delegates has repeatedly indicated its strong opposition to the idea of ABSs.”[44]

Perlman explains that for the ABA House of Delegates, and for the Ethics 20/20 Commission in particular, the entire proposal of alternative structures was a “nonstarter” and that any proposal to allow them “would likely have failed.” He offered several reasons for this, including the “lack of empirical support for the idea that ABSs would benefit the public.” However, and much more persuasive than that, he explains, was the “significant political effort” on the part of state bar associations to oppose them, and, especially because “some members of the House of Delegates were opposed to change as a matter of principle,” even if there had been evidence that change “would benefit the public without attendant harm.”[45] These words on the part of Perlman—again, someone who had a front-row seat to the activities of the Commission—are highly remarkable. They stop just short of describing the Commission’s activities as a sham, if not in whole than at least with respect to its consideration of alternative structures. Perlman makes it clear that a decision to not change Model Rule 5.4 had been made in advance, giving the impression that the activities of the Alternative Business Structures Working Group were little more than a show performed to divert criticism of the ABA’s inaction on the topic.

Commission on the Future of Legal Services: Someone Should Collect Data

In August 2014, the new ABA president, William C. Hubbard, appointed a new Commission—the Commission on the Future of Legal Services. Declaring that this Commission will be a priority for the ABA, Hubbard further stated:

The commission will evaluate how we can help bridge the justice gap in this country, make better use of technology, and develop new, innovative platforms for access to justice and new opportunities to meet client needs.

For too long, we’ve tried to do things the same way in the legal system. We are tradition bound, and sometimes rightly so. But we’re at a point where our clients and the public are looking to the legal profession to be more accessible, more efficient, and more user-friendly.

Other industries have transformed themselves. For example, no one banks the way we once banked. We don’t shop the way we used to shop. So we also need to look at different ways we can deliver legal services. If we can take advantage of technology and innovative approaches to the delivery of legal services, we could potentially significantly close the justice gap in our country and better meet the needs of our clients.

About 80 percent of the poor in our country do not have adequate access to legal services. Increasingly, people of moderate means are not using lawyers. They’re going it alone. We see that particularly among small business owners. We need to be more accessible to the poor and to those of moderate means. We need to evolve as a profession by taking advantage of developing technologies and innovation to close the justice gap. The result will be a justice system that is more efficient and more accessible for everyone.

It’s important to understand that in 2012, $66 million was invested in legal technology startups. A year later that number jumped to $458 million. These investments were not made in law firms, but in technology companies.[46]

Like the Commission on Ethics 20/20, the 28-member Commission was composed of practicing lawyers, judges and law school professors[47] (with one exception, Stephen Cone, who was the Chief Revenue Officer of the ABA).

On November 3, 2014, the Commission released an “Issues Paper on the Future of Legal Services” in which it explained that it is conducting a “comprehensive examination of the issues relating to the delivery of, and the public’s access to,” legal services in the US. By way of background, the Commission echoed Hubbard’s prior statements: many persons who need legal services do not obtain them, either because they cannot afford them or because they opt for less expensive alternatives. At the same time, “technology, globalization, economic and other forces” transform how legal services are accessed and delivered, with new, untraditional, providers emerging online and offline to offer services in very different ways.[48]

In this context, the Commission created six working groups to study these developments and draft recommendations for the Commission’s consideration. The six working groups included: (i) Data on Legal Services Delivery, (ii) Dispute Resolution, (iii) Preventive Law, Transactions and Other Law-Related Counseling; (iv) Access Solutions of the Underserved, (v) Regulatory Opportunities,” and (vi) Blue Sky. More specifically, the Issues Paper describes that the group “Regulatory Opportunities” is charged with studying existing regulatory innovations, such as alternative business structures and the Canada Bar Association’s Legal Futures Initiative Report, and then recommending “regulatory innovations that improve the delivery of, and the public’s access to, competent and affordable legal services.”[49]

The Issues Paper then listed just over two pages of questions—about 35 in total—upon which the Commission sought comment.[50] The questions ranged from how, generally, clients and potential clients can be better served, to whether access to legal services can be improved by authorizing persons without a full law school education and law license to provide them, to what insights can be gained from innovations in other professions and industries. The questions included, notably:

  • Can access to legal services be improved if the pool of available providers is expanded to include people without a J.D. and full law license?
  • To what extent should those who are not licensed to practice law be permitted to have an ownership in law firms?
  • What other kinds of regulatory innovations in the US or other countries could help to improve the delivery of legal services (e.g. entity regulation and proactive risk-based management/compliance programs, such as those in Australia that have helped foster ethical infrastructures and reduced complains against regulated firms?).[51]

The Commission received over 60 written submissions in response to the Issues Paper.[52] Those submissions addressed, in whole or in part, the gamut of the 35 questions posed in the Issues Paper. Just 11 of the submissions made an express reference to alternative structures (of those, a few also made reference to entity regulation). Of those 11, two expressed opposition to them,[53] three were (more or less) neutral[54] and six were in favor.[55]

Nothing in the November 2014 Issues paper mentioned regulatory objectives, let alone proposed them as a topic for consideration. Accordingly, none of the written submissions in response addressed the topic in any meaningful way. Nevertheless, the next step the Commission took was to prepare and circulate for comments a draft Report to the House of Delegates with respect to proposed Model Regulatory Objectives.[56]

While the public record is unclear in this respect, it appears that the Commission circulated one or more drafts of the Report at first among selected groups within the ABA, and then later, in late September, 2015, among “all ABA entities, state and local bar associations, and affiliated entities.”[57] There is no public record of the Commission having reached out to a wider range of organizations or individuals. Notably, there is no record that the Commission posted a draft Report on its website for public consultation.[58]

The content and wording of the Report underwent modification during its restricted consultation process, but in essence the Report contained a proposed resolution for adoption by the House of Delegates containing ten model regulatory objectives, together with an explanation of the development of the proposed model regulatory objectives, the purpose of the objectives, and the reasons why, in the Commission’s opinion, the House of Delegates should adopt the proposed resolution.

The ten model objectives include, among others, “protection of the public,” “advancement of the administration of justice and the rule of law,” “meaningful access to justice and information about the law,” “independence of professional judgment,” and “diversity and inclusion among legal services providers and freedom from discrimination for those receiving legal services and in the justice system.”[59]

The proposal, as it appears in the Report, included an additional resolution urging 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.”[60]

The Report asserts that “U.S. jurisdictions” are considering the adoption of regulatory objectives to serve as a framework for the development of standards in response to a changing legal profession and legal services landscape,” and the Report recalls that “numerous countries” already have adopted their own regulatory objectives. In this context, the Report explains that, for the Commission, the development of regulatory objectives is a “useful initial step” to guide supreme courts and bar authorities in assessing their regulatory framework and in considering any new regulations they may choose to develop concerning non-traditional legal service providers. “Given that supreme courts in the U.S. are beginning to consider the adoption of regulatory objectives and given that providers of legal assistance other than lawyers are already actively serving the American public, it is especially timely and important for the ABA to offer guidance in this area.”[61]

Citing an article by Laurel Terry, Steve Mark and Tahlia Gordon, “Adopting Regulatory Objectives for the Legal Profession,” the Report lists five benefits of the adoption of regulatory objectives, including that they serve as a guide to assist those regulating the legal profession and those being regulated, and they assist in ensuring that the function and purpose of the particular regulation is transparent.[62]

One additional benefit, the Report states, is that model regulatory objectives will be useful to guide the regulation of “an increasingly wide array of already existing and possible future legal services providers.”[63] The Report, again echoing Hubbard, continues:

The legal landscape is changing at an unprecedented rate. In 2012, investors put $66 million dollars into legal service technology companies. By 2013, that figure was $458 million. 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.[64]

This language is remarkable, if not extraordinary. In perhaps the most open and direct manner than any ABA body has ever done before, it acknowledges the existence of, if not implicitly approves of (albeit after the fact), legal service providers that are not lawyers. In light of the fact that these structures are, today, unregulated, this language suggests, if not directs, state supreme courts to consider whether and, if so, how, to regulate such providers. Indeed, a primary purpose of the model regulatory objectives is to establish guidelines for their regulation.

But after making these remarkable statements, the Report then pulls back (or, perhaps, tries to reassure):

From the outset, the Commission has been transparent about the broad array of issues it is studying and evaluating, including those legal services developments that are viewed by some as controversial, threatening, or undesirable (e.g., alternative business structures). The adoption of this Resolution, however, does not predetermine or even imply a position on those issues by the ABA. If and when any other issues come to the floor of the House of Delegates, the Association can and should have a full and informed debate about them.[65]

The Commission posted on its website 16 of the written comments it received in relation to the Report and the proposed resolutions. Of those 16 submissions, eight were from “ABA entities” (other commissions, committees, sections and divisions), three were from state or local bar associations, and four were from individuals—of which one was a practicing lawyer, one a law student and one a law school professor.[66] Most of those submissions (about 11 of them[67]) voiced support for the adoption of model regulatory objectives, either as they appeared in the Report, or with certain more or less minor modifications. For example, the ABA Commission on Lawyer Assistance Programs, citing research indicating disproportionately high levels of substance abuse and rates of depression and anxiety among lawyers, wrote twice in order to recommend that the Commission enumerate an objective “that would lead to regulatory innovations addressing the needs of legal service providers to confront impairments in the most effective manners for individuals and our legal system.”[68] As another example, the ABA Solo Small Firm and General Practice Division wrote that the comments to the regulatory objectives should “expressly state that it is not encouraging non-attorney legal providers.”[69]

Just two of the written submissions clearly expressed strong opposition. The New Jersey State Bar Association (NJSBA) wrote that the proposal “is contrary to our profession’s core values, and promotes a tiered system of justice that will imperil those most vulnerable in our society.” The NJSBA objected that the resolution assumes that nonlawyers should be permitted to provide legal services and that it implicitly endorses alternative business structures, in contradiction to “the core principle of our legal system that lawyers are singularly and uniquely qualified to provide legal counsel.” Further, the NJSBA was not impressed by arguments that large sums of money had already been invested or that a “vast array of non-lawyer service providers” were already offering their services online. For the NJSBA, this did not mean that their continued existence was inevitable, nor was it a reason for the ABA “to endorse their continued existence.” In this manner, the NJSBA argued that the ABA was failing to fulfill its unique role of protecting “the public and the justice system from unethical and illegal infringement by non-lawyers into the justice system.”[70]

The second objector was Lawrence J. Fox, a partner with the Philadelphia-based firm Drinker Biddle. He stated that the proposal should be rejected out of hand, in part because the Commission had taken an “intellectually dishonest approach, hoping we would not notice the real purpose of the Regulatory Objectives is to be a stalking horse for non-lawyers practicing law, non-lawyers owning law firms and multi-disciplinary practices.” For Fox, the situation was dire: if the House of Delegates were to adopt the objectives “it will be the end of our profession as we know it.[71]

The Report was the subject of a heated debate by the House of Delegates at its Midyear Meeting in February, 2016. The American Lawyer called it “one of the most controversial issues before the ABA in years.”[72] The more vocal opponents at the debate included David Miranda, president of the New York State Bar Association (and a partner with the Albany firm Heslin Rothenberg Farley & Mesiti), Miles Winder III, president of the New Jersey State Bar Association (and a solo practitioner based in Bernardsville), and Marjorie O’Connell, representing the National Conference of Women’s Bar Associations (and a practitioner based in Washington DC). Miranda reportedly stated that the resolution could “open the doors to entrepreneurs trying to make money off backs of lawyers who are starving for work.” Winder “expressed concern that the resolution could lead to a two-tier system where nonlawyers serve the poor, while the rich use lawyers.”[73] O’Connell reportedly stated that her members were “mad as anything” at the prospect of handing legitimacy to poorly trained practitioners, particularly since so many female lawyers have struggled to be taken seriously: “We have no patience with the idea of a big corporation coming in and saying, ‘We can for $5 get you a lawyer and get you an answer’…It’s not informed by an education, by adherence to professional standards.”[74]

Supporters of the Report included William Johnston, a partner with the Wilmington, Delaware firm Young Conaway Stargatt & Taylor, chairman-elect of the ABA’s Business Law Section, and a past president of the Delaware State Bar Association. He challenged the notion that the resolutions would harm the profession, stating “I would submit that this is an invalid premise—that this is a zero sum game and that nonlawyers will be taking food out the mouth of lawyers…There are substantial unmet legal needs that are not being met by members of the organized bar.”[75]

Ultimately, the House of Delegates voted in favor of the Resolution, but only after adding this additional clause:

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.[76]

Taken as a whole, what exactly does the Resolution mean? What is its significance?

Prior to the adoption of this Resolution, the manner that most bar associations, the ABA included, have typically addressed the topic of “non-traditional legal service providers” has been either to criticize the quality or utility of their services and/or to argue that they engage in the unauthorized practice of law.[77] Like the Commission’s statements in the Report, the fact of the House of Delegates’ adoption of the Resolution is remarkable in that it breaks away from this much more typical approach in order, if not to implicitly approve of their existence, then at least to acknowledge it. And this acknowledgement extends not only to the fact that they exist today, but also to the fact that it is highly likely that they will also exist tomorrow, quite possibly in even greater numbers. With the Resolution, the ABA seems to finally accept this state of affairs and, in doing so, says that if “non-traditional legal service providers” are to exist, then there should be at least some guiding principles for their regulation—principles that should apply to the regulation of traditional legal service providers as well.

What neither the Resolution nor the Report does is define “non-traditional legal service providers.” Does it encompass only the types of providers that exist today? That is, more particularly, does it only encompass: (i) individuals (as opposed to companies or other organizations) who are not lawyers but who provide legal services in a limited and strictly defined context, such as Washington State’s Limited Licensed Legal Technicians[78] and New York State’s Court Navigators,[79] and/or (ii) companies that are owned by nonlawyers but that provide legal services, such as LegalZoom and RocketLawyer, Modria, Axiom,…?

Or, does the term “non-traditional legal service providers” go further than that? Does it—could it—also encompass structures, be they companies or other types of organizations, that are owned in whole or in part by nonlawyers, and that provide legal services outside the limited contexts of existing companies like the ones listed above, but in “nontraditional” manner such that it could be difficult to describe the structure as a traditional “law firm”?

Let’s look again at the additional clause added by the House of Delegates. It states “nothing contained in this Resolution abrogates in any manner existing ABA policy prohibiting non lawyer ownership of law firms.” What is a “law firm?” At what point does an organization that provides legal services cross the line into constituting a “law firm,” and vice-versa? Does the choice of wording for this clause imply that it is fine for nonlawyers (together or not with lawyers) to own legal service providers—regardless of how wide the range of services they provide—as long as those providers are operated as companies or not-for profit organizations and instead of as traditional “law firms?”

The questions are very interesting ones, without a doubt. But in large part they are academic. Nothing in the Resolution expressly changes Model Rule 5.4 and its restrictions remain in place.

The Commission’s next steps appeared to be a whirlwind of more or less focused activity just before the Commission’s mandate expired in August, 2016. More specifically, between October, 2015 and April, 2016, the Commission released four “Issues Papers,” three of which concerned the following topics, respectively, “New Categories of Legal Services Providers,” “Unregulated LSP Entities,” and “Alternative Business Structures.”

In the first of these three Issues Papers (“New Categories of Legal Services Providers”[80]), the Commission sought feedback on whether persons (individuals, not companies or other organizations), referred to as “LSPs” should be allowed, via judicial authorization and regulation, “to perform discreet and limited legal tasks with the goal of improving access to legal services.” The Commission explains that it is inspired by certain US states, such as New York and Washington State, which already have experience with them. Such persons can potentially serve, the Commission argues, to address an “escalating access to justice crisis”[81] in the US. The Commission states that it is seeking feedback on whether “more supreme courts should be encouraged to authorize and regulate these kinds of LSPs.” In this context, the Commission takes pains to clarify that its proposal regarding LSPs “is consistent with the longstanding ABA policy in support of state-based judicial regulation of the legal profession and the practice of law by licensed lawyers.”

The Commission posted on its website a total of 24 responses to this Issues Paper.[82] Of those 24, fifteen expressed opposition (and, in many cases, strong opposition) to the creation of new categories of LSPs,[83] five expressed support for them,[84] and four either expressed no opinion, or their opinion was unclear.[85]

Interestingly, the state of New Jersey was particularly represented among the opponents, as not only did the New Jersey State Bar Association submit a response in strong opposition but so did the county bar associations of each of eight[86] (out of a total of 21) New Jersey counties. Their comments included:

“The [New Jersey State Bar Association] is strongly opposed to allowing non-lawyers to provide any kind of legal services, even in a limited fashion. We do not agree with the premise that the public will be better served by creating categories of legal service providers. On the contrary, we believe such action will create a tiered system of justice that will imperil those most vulnerable in our society,”[87]

and

“The ABA’s proposal would expose the public to substantially inferior advice on significant matters. A better solution would be (1) a public education campaign informing people that there are organizations to help them find a lawyer, and (2) the creation of one or more mechanisms to match lawyers willing to provide representation at reduced rates with clients having this need.”[88]

The opposition expressed by another state bar association, this time that of New York, was particularly forceful:

[T]he ultimate responsibility for the provision of legal services [should] remain with lawyers…[L]egal licensed technicians was developed and instituted by the judiciary in the State of Washington over the strong objections of the state bar association of that state. We have strong concerns about any proposal that may diminish the independence of the legal profession, or that modifies rules of ethics to permit non lawyers to offer legal services to the public.[89]

The opposition expressed by the ABA Solo, Small Firm and General Practice Division is also noteworthy:

[T]he ABA should be at the forefront at protecting the American Public and its membership and should be advocating and educating the public as to why one should retain a lawyer and not advocating or endorsing non-lawyers offering legal services which will directly compete with the solo and small firm lawyer.[90]

The five responses that expressed support for the creation of new categories of LSPs included that of Responsive Law, a Washington DC-based, tax-exempt organization that describes itself as “the consumer’s voice in the legal system.” In its submission, Responsive Law states that LSP programs are essential as a means to “close the justice gap.”[91] Responsive Law then goes further, to question two fundamental presumptions that the Paper explicitly refused to question: that legal services are best regulated by, and should continue to only be regulated by, state supreme courts, and that only licensed lawyers should be allowed to engage in the practice of law. To the contrary, Responsive Law argues that “the legal industry is just that—an industry.” It should be governed by state legislatine and executive branches, not by potentially self-interested lawyers, if new, innovative solutions are going to occur. Further, Responsive Law continued, the definition of what it is to practice law also needs to change and unauthorized practice of law regulations need to be modified so that greater access to legal help from multiple sources, not just lawyers, is available to the public. “The justice gap in America is so big and the country is so dependent on the rule of law that without making these changes its citizens’ right to due process will be fundamentally impaired.”[92]

In the second of these three Issues Papers (“Unregulated LSP Entities”), the Commission observes there has been a “proliferation” of non-traditional unregulated LSP entities (as opposed to individuals) that deliver legal or law-related services. The Commission explains that this has occurred “due to the fast pace of technological advancements and growing consumer demand for easy access to legal services.”[93] The Commission further explains that for these entities, the governing law is simple: Either they are prohibited from providing services because the services constitute the practice of law, or they are free to offer their services, often without the kinds of regulations that apply to lawyers. This approach is problematic, the Commission continues, for two reasons. Firstly, it is notoriously difficult to define the practice of law, and thus to determine whether any such entity is engaged in it. Secondly, regardless of whether it constitutes the practice of law or not, these entities may offer services that warrant regulation beyond that provided by generally applicable consumer protection laws. To this end, the Commission states, “the courts might usefully consider whether the creation of a regulatory structure for currently unregulated LSP entities is necessary to protect the public,” and “one potential approach a court may undertake is entity regulation.” [94] To this end, the Commission sought data and evidence about currently unregulated LSP entities, information concerning any efforts to regulate them, and input on whether state judicial authorities should be encouraged to regulate currently unregulated LSP entities and, if so, what form those regulations should take.[95]

The Commission posted 24 responses to this Issues Paper. Of those, five were from other ABA organizations (Standing Committees and one Division) and five were from state or local bar associations. Of the remainder, one was from an LSP (Avvo, Inc.), one was from an organization of LSPs (New England Litigation Technology Professionals), one was from an organization that advocates for the rights of disabled persons (Colorado Cross-Disability Coalition), and, one, again, was from Responsive Law (an organization that advocates for the interests of individuals in the legal system). The final ten were from individuals, all but two of which were lawyers (the two that were not, John Cosmides and Meng Weng Wong, were co-founders of their respective LSPs).[96]

The content of the responses was highly varied and difficult to summarize. Some respondents were opposed to the existence of LSPs and as a result they were opposed their regulation of LSPs as entities because doing so would legitimize them.[97] Some respondents were opposed to the existence of LSPs, but, more or less resigning themselves to their existence, advocated for their regulation.[98] Some respondents championed LSPs as important for meeting the access to justice gap, but argued against their regulation by state courts on the grounds either it is unnecessary (they are already regulated by consumer protection laws), that it would unnecessarily increase costs, or that regulation would only enable the state bars and courts to exercise their “protectionist instincts.”[99]  On the other hand, while other respondents also championed LSPs, they felt it’s not possible to “responsibly advocate” for them without also advocating for their “meaningful regulation.”[100] Other respondents simply weren’t sure whether regulation was a good idea or not,[101] and one respondent told the Commission in no uncertain terms that both its Issues Paper and its work on the subject were insufficient, stating that “far more thought and analysis” was required with respect to the “notion of entity regulation if it is to be extended beyond the governance of law firms.”[102]

In fact, whether it was done purposefully or not, this response (of the ABA Standing Committee on the Delivery of Legal Services) puts its finger on the essential problem with this Issues Paper issued by the Commission. In this Issues Paper, the Commission used the expression “entity regulation” entirely divorced from the regulation of law firms as entities, and entirely divorced from proactive, management-based/compliance-based/outcomes focused regulation. In this manner, the Issues Paper was confusing. Even though the Commission made a point of using the buzz words “entity regulation,” the real focus of the paper was not so much on entity regulation as that term is typically understood as it was on the much different question of whether “non-traditional legal services providers” should be regulated by state courts at all.

In the third of these three Issues Papers (“Alternative Business Structures”), the Commission appeared to openly defy the House of Delegates. That is, even though just two months earlier the House of Delegates had adopted a resolution emphatically confirming “existing ABA policy prohibiting non lawyer ownership of law firms,”[103] the Commission nevertheless released this Issues Paper, explaining the document’s purpose as (i) to describe recent developments with respect to ABS and (ii) to seek “broad feedback and additional factual information regarding ABS.”[104] More specifically, the Commission explained, other jurisdictions, and most notably England & Wales and Australia, permit them. The Commission listed and discussed four “potential benefits” of ABS (increased access to justice, enhanced financial flexibility, enhanced operational flexibility, and increased cost-effectiveness and quality of service) and four “potential risks” (threat to lawyers’ core values, decreased pro bono work, threat to attorney-client privilege, and failure to deliver identified benefits). In “analyzing the evidence regarding ABS,” the Commission concludes: (i) there is no evidence that ABS caused harm, (ii) ABS has increased funding for innovation, and (iii) jurisdictions have “stayed with ABS.” In this context, the Commission called for comments on the “potential benefits and risks associated with ABS,” as well as “evidence or other input” on the relative advantages and disadvantages of different types of ABS (for example, with limits on the percentage of nonlawyer ownership and/or multidisciplinary practices).[105]

The Commission got a lot of feedback—well over 100 responses[106]—an overwhelming number relative to the responses to the other Issues Papers. Of those responses, 94 expressed opposition, and in many cases vehement opposition, to alternative structures as compared to just 12 responses expressing support (the remaining responses took no position, were unclear, or duplicated another response—one that expressed strong opposition).[107] Nearly all of the responses were from lawyers, speaking either individually as lawyers or on behalf of a group of lawyers, most notably bar associations but also some law firms. Predictably, some expressed surprise, if not outrage, that the Commission had put the issue back on the table so soon after the February 2016 resolution of the House of Delegates.[108] Others raised the objections to alternative structures that are commonly raised:[109] that they are a threat to the profession’s core values,[110] that they will trigger irresolvable conflicts of interest,[111] that lawyers will lose their independence,[112] that there is no evidence that alternative structures have increased access to justice in Australia or England & Wales,[113] that law firms can attract employees by paying competitive salaries without the need to offer employee shareholding,[114] that the burden of proof lies with those who advocate for alternative structures,[115] that there is no way to regulate alternative structures,[116] that alternative structures will lead to a consolidated market for legal services,[117] that more research is required,[118] etc.

Some raised otherwise commonly raised objections, but with new twists:

  • “Not only do England & Wales and Australia have different systems from ours, but their systems are flawed,” and “they should be more like us and not us like them;”[119]

  • Alternative structures are a “utopian ideal as cited by socialist societies in Italy, Great Britain, Germany, Spain and Australia…strong capitalistic countries like France, Switzerland and Brazil have not adopted such a system;”[120]

  • “The nonlawyer investment ownership and management reforms adopted by our common law cousins were put into place many years ago. Given the quick pace of technological change those reforms… may simply no longer be applicable or appropriate for the current American experience.”[121]

As colorful and interesting as these objections are, even more interesting are the many objections that do not even try to hide that the House of Delegates’ priority must lie not with the best interests in the public, but with the best interests of the members of the profession—or more accurately, with the perceived best interests not of the members of the profession as a whole, but the members of the ABA. In fact, it’s not just that those expressing these objections do not hide this priority for the House of Delegates, they go further—they openly and boldly flaunt it, as can be seen in these examples:

  • “Goal 1 of the ABA’s mission to service our members cannot be ignored or marginalized. [The Commission’s Issues Paper regarding alternative business structures] seems to stray from the core of ABA Goal 1 and risks further alienation of our membership.”[122]

  • “The American Bar Association is an organization which should promote and preserve the professional essence of what it means to be a lawyer. I trust it will live true to its mission and reject the ABS proposal.”[123]

  • “The ABA is in the midst of a membership crisis …which is creating a severe financial strain … which will inevitably dictate cuts in service to our members which will cause us to continue to bleed members. I do not think that this particular proposal helps us in that regard… While the stated goals might be laudable, I think the ABA continues to push dues paying members away with the executive decisions we make and the policies we adopt. Goal 1 of the Association is service to our members.”[124]

  • “It appears that ABA is choosing to disregard a core principle of its mission statement: serving as the national representative of the legal profession. The ABA’s very existence is founded on representing a profession, not corporate sponsors. The ABA should not even consider serving as the agent for venture capitalists and non-lawyers that are seeking to profit from the public at any cost.”[125]

  • “The best thing that [a bar association] can do for its lawyer membership is to enhance the lawyer’s ability to practice law, and to enhance the level of services that lawyers are able to provide their clients…enhancing opportunities for outsiders to own interests in law firms [does not] meet that objective.”[126]

  • “Please do not put the House of Delegates through another bruising battle. It will only result in the American Bar Association enduring yet another decline in membership as our profession views the ABA as having lost its way, losing the respect it once had when giants like Robert MacCrate[127] defended our eternal values and principles and lawyers proudly displayed their ABA membership certificate on their office walls.”[128]

  • “I am absolutely astounded that something this significant could be proposed by the ABA without a careful market survey of its constituents…The ABA is losing touch with its constituents. The current political climate clearly demonstrates the voters’ total dissatisfaction with leadership which has disconnected from constituents…This type of proposal leads me to believe that the ABA may be losing touch with its core values, its mission and the needs of its constituents—the lawyers in the profession.”[129]

  • “I urge the ABA to stand tall for the profession and the future of the profession. Reject any attempt to allow non-lawyers [to] own some or all of a law firm.”[130]

  • “As a bar organization, how about proposing ideas that will help lawyers—not nonlawyers?”[131]

The comments below merit particular attention, because they were submitted by persons who identified themselves as members of the House of Delegates:

  • “[T]he ABA is losing membership and money. From a purely self-preservation perspective, we are more likely to have members drop from adopting and seemingly promoting these ABS recommendations than gain constituents. You are making it harder for me to entice lawyers into joining the ABA than to disavow it. Lawyers want to be part of a professional association that lobbies for them, not against them.”[132]

  • “Goal 1 of the ABA is to serve its members and such changes would not.”[133]

After all these comments were submitted, what happened next is… well, what happened next is nothing. That is, the Commission reportedly had a deadline of May 10, 2016 to submit proposals for consideration by the House of Delegates at its Annual Meeting in August. The deadline passed without the Commission submitting any proposals.[134] More than one commentator did not find this surprising, especially with respect to alternative structures, “given the overwhelming lack of support for ABS within the ABA.”[135]

Instead, in August, 2016, the Commission issued its final report. Spanning 105 pages, as much could be said about what it does not contain as about what it does. For the purposes of this book, the following observations should suffice:

  • As regards the topics of two of the three Issues Papers described above, the Commission booted one to “courts” and a second to “states,” without recommending any further action on the part of the ABA or “the legal profession.” More specifically, with respect to New Categories of Legal Services, the report recommends that courts “should examine, and if they deem appropriate and beneficial to providing greater access to competent legal services, adopt rules and procedures” [136] in their regard. That being said, the report takes care to clarify, the Commission “does not endorse the authorization of any LSPs” in any particular situation or category. And with respect to Unregulated LSP Entities, the report recommends that states should explore how they provide legal services “and then assess the benefits and risks to the public associated with those services.” [137] Other responsibilities that the report assigns to courts include “making courts more accessible, user-centric and welcoming,” and creating programs for training and mentoring prison inmates.[138]
  • However, as regards the topic of the third Issues Paper described above, Alternative Business Structures, the Commission takes a different tactic. Rather than boot this topic to “courts” or “states,” instead the Commission keeps it yet longer for the ABA, stating that the ABA should “engage in an organized and centralized effort to collect ABS-related information and data.” It should not do this entirely alone, however, as the Commission calls upon the jurisdictions that permit ABS to “seek to compile relevant data on this subject as well.” The Commission explains: “By creating a centralized repository for this information and data, the ABA can continue to perform a vital and longstanding function: ensuring that deliberations on a subject of import to the profession are fact-based, thorough, and professional.”[139]
  • The report contains additional recommendations, including “all members of the legal profession should keep abreast of relevant technologies,” “individuals should have regular legal checkups,” and “the legal profession should partner with other disciplines and the public for insights about innovating the delivery of legal services.” In addition, the report recommends, the ABA should establish a “Center for Innovation.” The Center would be responsible for “proactively and comprehensively encouraging, supporting and driving innovation in the legal profession and the justice system.” The Center can do this, the report explains, in a variety of ways, such as by providing “materials and guidance” to commissions organized by state and other bar associations, by providing educational programming on how to improve the delivery of and access to legal services, and by maintaining a comprehensive inventory and evaluation of the innovation efforts taking place. Perhaps most notably, the Center can operate a program of “innovation fellowships” to provide “fellows in residence” with the opportunity to work with a range of other professionals (technologists, entrepreneurs and design professionals) “to create delivery models that enhance the justice system.”[140]

Reception of the report was mixed. For example, one commentator said that the report left her “wishing for more” and that its recommendations were not sufficiently bold.[141] Other commentators reflected that in “passing the buck”[142] and taking the route of recommending further study, the report avoids the hardest issues.[143] Perhaps most colorfully, another commentator stated that the report’s recommendations “could not be lamer,” and that they read “like 150 people got together on it and nothing could be included in it unless at least 149 of them agreed to it.”[144]

At the time this book went to press, the ABA had already followed up on one of its recommendations, having announced the creation of a Center for Innovation practically simultaneously with the publication of the Commission’s final report. The first Chair of the Center’s governing council was Andrew Perlman, who had served as Vice-Chair of the Commission on the Future of Legal Services (and who had also served as Reporter for the Commission on Ethics 20/20). The Center’s first announced projects, as reported in the ABA Journal, were to assist the ABA Judicial Division in implementing a court-annexed online dispute resolution pilot program in New York, and to participate in the development of guidelines and standards to help lawyers and bar associations administer regular legal checkups for individuals.[145] On the other hand, at the time this book went to press, there was no evidence that the ABA had taken any steps to implement the report’s Recommendation 2.4, namely that the ABA create a centralized repository for ABS-related information.

Positive or negative, whatever else may be said about the Commission and its work, it soundly confirmed the seemingly indestructible nature of Model Rule 5.4.

This chapter is an excerpt from Modernizing Legal Services in Common Law Countries: Will the US Be Left Behind? To learn more about the book, please click here.

Notes

[1] John H. Matheson and Edward S. Adams, “Not ‘If’ but ‘How:’ Reflecting on the ABA Commission’s Recommendations on Multidisciplinary Practice,” Minnesota Law Review 84 (2000): 1280, http://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1098&context=faculty_articles.

[2] James E. Moliterno, The American Legal Profession in Crisis: Resistance and Responses to Change (New York: Oxford University Press), 165.

[3] “The Commission on Multidisciplinary Practices,” American Bar Association, accessed March 17, 2017, http://www.americanbar.org/groups/professional_responsibility/commission_multidisciplinary_practice/mdp_abt_commission.html.

[4] ABA Commission on Multidisciplinary Practice, “General Information Form,” accessed March 17, 2017, http://www.americanbar.org/groups/professional_responsibility/commission_multidisciplinary_practice/mdpgeninfo.html.

[5] Louise Lark Hill, “The Preclusion of Nonlawyer Ownership of Law Firms: Protecting the Interest of Clients or Protecting the Interest of Lawyers?” Capital University Law Review 42 (2014): 916, http://ssrn.com/abstract=2546886.

[6] Ibid., 916-917.

[7] “MDP Recommendation – Center for Professional Responsibility,” American Bar Association, accessed March 20, 2017, http://www.americanbar.org/groups/professional_responsibility/commission_multidisciplinary_practice/mdprecom10f.html.

[8] “About Us,” American Bar Association Commission on Ethics 20/20, accessed March 17, 2017, http://www.americanbar.org/groups/professional_responsibility/aba_commission_on_ethics_20_20/about_us.html.

[9] Ibid. The Commission was co-chaired by Michael Traynor, President Emeritus and Chair of the Council of the American Law Institute and a former President of the Bar Association of San Francisco, and Jamie S. Gorelick, a partner with the Washington DC firm WilmerHale. Gorelick was a controversial figure: She was dubbed the “Mistress of Disaster” in connection with the roles she played, for example, while serving as Deputy Attorney General from 1994-1997 and as Vice Chairman of the Federal National Mortgage Association (Fannie Mae) from 1997 to 2003. Also dubbed “swamp queen,” Gorelick was considered a front-runner to be Hillary Clinton’s Attorney General. At the time this book went to press, Gorelick was acting as ethics adviser to President Trump’s daughter and son-in-law, Ivanka Trump and Jared Kushner. See Ted Krager, Skullduggery: The True Causes of the Financial Crisis (Bloomington, IN: Authorhouse, 2012), 228-230; see also Eric Lichtblau, “Jamie S. Gorelick,” New York Times, November 9, 2008, http://www.nytimes.com/2008/11/08/us/politics/08gorelick.html; Todd Bishop, “Amazon Board Adds Jamie Gorelick, Former Fannie Mae and DOJ Official,” Geekwire, February 10, 2012, http://www.geekwire.com/2012/amazon-board-adds-fannie-mae-doj-official-jamie-gorelick/; Jack Shafer, “Fannie Mae and the Vast Bipartisan Conspiracy: A List of Villains in Boldface,” Slate, September 16, 2008, http://www.slate.com/articles/news_and_politics/press_box/2008/09/fannie_mae_and_the_vast_bipartisan_conspiracy.html; James Simpson, “Why is Swamp Queen Jamie Gorelick Advising Jared Kushner?” Canada Free Press, March 26, 2017, http://canadafreepress.com/article/why-is-swamp-queen-jamie-gorelick-advising-jared-kushner. Another member of the Commission was Kenneth W. Starr, known for his controversial role as independent counsel investigating alleged abuses in connection with President Bill Clinton and the Clinton Administration. See “Starr Report,” Wikipedia, accessed March 17, 2017, https://en.wikipedia.org/wiki/Starr_Report.

[10] ABA Commission on Ethics 20/20, “Minutes,” February 4, 2010, 9, http://www.americanbar.org/content/dam/aba/migrated/2011_build/ethics_2020/feb_2010_minutes.authcheckdam.pdf.

[11] Ibid.

[12] ABA Commission on Ethics 20/20, “Minutes,” April 29, 2010, 7, http://www.americanbar.org/content/dam/aba/migrated/2011_build/ethics_2020/apr_2010_minutes.authcheckdam.pdf.

[13] ABA Commission on Ethics 20/20, “Minutes,” February 10, 2011, 6-7, http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/20110328_ethics2020_minutes_february_10-11-2011-approved.authcheckdam.pdf.

[14] Ibid., 6.

[15] ABA Commission on Ethics 20/20 Working Group on Alternative Business Structures, “For Comment: Issues Paper Concerning Alternative Business Structures,” April 5, 2011, 2, http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/abs_issues_paper.authcheckdam.pdf.

[16] Ibid., 7-15.

[17] Ibid., 15-16.

[18] Ibid., 2.

[19] Schneyer, “The Case for Proactive Management-Based Self-Regulation,” 233-265.

[20] ABA Commission on Ethics 20/20 Working Group on Alternative Business Structures, “For Comment: Issues Paper Concerning Alternative Business Structures, April 5, 2011, 2, 19.

[21] Ibid., 17-19.

[22] Ibid., 20.

[23] ABA Commission on Ethics 20/20, “Minutes,” April 15-16, 2011, 9, http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/20110812_ethics2020_minutes_april_15_16_2011_approved.authcheckdam.pdf.

[24] The responses can be accessed on the ABA’s website at this link (last updated August 28, 2012): http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/alps_working_group_comments_chart.authcheckdam.pdf.

[25] ABA Commission on Ethics 20/20, “Minutes,” June 13, 2011, 7, http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/20110812_ethics2020_minutes_june_13_2011_approved.authcheckdam.pdf.

[26] Jamie S. Gorelick and Michael Traynor, “For Comment: Discussion Paper on Alternative Law Practice Structures,” December 2, 2011, 1, http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/20111202-ethics2020-discussion_draft-alps.authcheckdam.pdf.

[27] Ibid., 1-2.

[28] ABA Commission on Ethics 20/20, “Discussion Draft for Comment: Alternative Law Practice Structures,” December 2, 2011, 5, http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/20111202-ethics2020-discussion_draft-alps.authcheckdam.pdf.

[29] Ibid., 9.

[30] Ibid., 5-6, 9.

[31] Ibid., 14-15.

[32] The responses can be accessed on the ABA’s website at this link (accessed March 17, 2017): http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/alps_working_group_comments_chart.authcheckdam.pdf.

[33] J. Leeds Barroll, David J. Carr, Nine General Counsel, Lawrence J. Fox, Illinois State Bar Association, Bruce Mann, Larry Murrell, New Jersey State Bar Association, Douglas R. Richmond, John Wm. Ringer, Charles Ruffin, Loretta A. Sheridan, State Bar of Arizona, Richard L. Thies, Alex Wulwick.

[34] Jeffrey Antonelli.

[35] ABA Section of Dispute Resolution.

[36] ABA Commission on Law and Aging, Thomas D. Morgan, National Federation of Paralegals Associations, Responsive Law.

[37] Thomas D. Morgan, Responsive Law.

[38] ABA Section of International Law, New York City Bar Association.

[39] Linda F. Marshak.

[40] The author requested from the ABA the minutes of the April 12-13, 2012 meeting, but did not receive them. Given that the decision to not proceed had been made at that meeting, presumably the minutes would reflect the reason(s) for this decision.

[41] ABA Commission on Ethics 20/20, “ABA Commission on Ethics 20/20 Will Not Propose Changes to ABA Policy Prohibiting Nonlawyer Ownership of Law Firms,” April 16, 2012, http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/20120416_news_release_re_nonlawyer_ownership_law_firms.authcheckdam.pdf.

[42] Ibid.

[43] ABA Standing Committee on Ethics and Professional Responsibility, “Formal Opinion 464: Division of Legal Fees With Other Lawyers Who May Lawfully Share Fees with Nonlawyers,” August 19, 2013, http://www.americanbar.org/content/dam/aba/publications/YourABA/fo_464.authcheckdam.pdf.

[44] Andrew M. Perlman, “Towards the Law of Legal Services,” Cardozo Law Review 37 (2015): 75, http://ssrn.com/abstract=2561014.

[45] Ibid., 75-79. Perlman’s account is as interesting for what it says as it is for what it does not say. At no point does Perlman question either: (i) the process the ABA followed (for example, that no significant input was sought or received from persons outside the legal profession (such as experts in economic policy, competition, human rights, consumer affairs,…) nor (ii) the legitimacy of the ABA’s regulatory power in this regard.

[46] “Welcoming The ABA’s New President,” Metropolitan Corporate Counsel, August 22, 2014, http://www.metrocorpcounsel.com/articles/29818/welcoming-aba%E2%80%99s-new-president.

[47] “Commission Roster,” American Bar Association, accessed March 17, 2017, http://www.americanbar.org/groups/centers_commissions/commission-on-the-future-of-legal-services/CommissionRoster.html.

[48] ABA Commission on the Future of Legal Services, “Issues Paper on the Future of Legal Services,” November 3, 2014, 1-2, http://www.americanbar.org/content/dam/aba/images/office_president/issues_paper.pdf.

[49] Ibid., 2.

[50] Ibid., 3-5.

[51] Ibid., 3.

[52] The submissions can be accessed at this link: “Comments – Future of Legal Services Issues Paper” American Bar Association, accessed March 17, 2017, http://www.americanbar.org/groups/centers_commissions/commission-on-the-future-of-legal-services/Comments.html.

[53] Justice Earl Johnson, Jr., Pat Monks.

[54] Standing Committee of the Delivery of Legal Services, ABA Standing Committee on Professional Discipline, Task Force on the Evolving Business Model of Law Firms.

[55] Ashley Balls, Richard Granat, Sands McKinley, Chas Rampenthal and James Peters (both of LegalZoom), Responsive Law, Slater & Gordon. An additional seven responses that did not expressly mention alternative structures but did address issues related directly to them:  Richard Zorza, ABA Commission on Homelessness and Poverty, ABA Law Student Division, ABA Standing Committee on Technology and Information Systems, Avvo, George Chandler, Nina Cornett (issues such as access to justice, limited licensure systems, more effective collaboration between lawyers and the technology industry, pro se representation, self-regulation of the legal profession).

[56] American Bar Association Commission on the Future of Legal Services et.al., “Report to the House of Delegates (105),” November, 2015, http://www.americanbar.org/content/dam/aba/images/office_president/final_regulatory_objectives_resolution_november_2015.pdf (hereinafter, “Report 105”).

[57] Report 105, 12.

[58] In its December 2015 Informational Report to the House of Delegates, the Commissions states that it solicited comments from the public. American Bar Association Commission on the Future of Legal Services, “Informational Report to the House Of Delegates,” December 2015, 3, http://www.americanbar.org/content/dam/aba/images/office_president/final_hod_informational_report_midyear.pdf. However, there is nothing in the public record to evidence that any consultation of “the public” occurred in any meaningful way. Further, in the Report to the House of Delegates containing the proposed model regulatory objectives, the Commission states that the Commission that it released the draft Report for comment only “to all ABA entities, state and local bar associations, and affiliated entities.” Report 105, 12.

[59]American Bar Association, “Resolution 105 Revised and Amended,” February 2016, http://www.americanbar.org/content/dam/aba/images/abanews/2016mymres/105.pdf.

[60] Report 105.

[61] Ibid., 1.

[62] Ibid., 1-2.

[63] Ibid., 2.

[64] Ibid.

[65] Ibid., 3.

[66] The fourth is difficult to understand. It is dated February 12, 2000. The writer, George Abbott, describes himself as a small business owner, and his statement appears to be testimony he provided before the ABA Commission that was contemplating multidisciplinary practices at that time.

[67] Those of the ABA Standing Committee on Client Protection, ABA Commission on Lawyer Assistance Programs, ABA Standing Committee on Paralegals, ABA Standing Committee on Professional Discipline, ABA Standing Committee on Professionalism, ABA Section of Real Property, Trust & Estate Law, ABA Solo, Small Firm and General Practice Division, Indiana State Bar Association, The Bar Association of San Francisco, Laurel S. Terry. The Supreme Court of Colorado can also be included in this list, although its submission could be described as simply informing the ABA of the state’s own recently adopted regulatory objectives, without expressing an opinion on the ABA’s.

[68] ABA Commission on Lawyer Assistance Programs, “Proposed Resolution Regarding Model Regulatory Objectives,” October 28, 2015, http://www.americanbar.org/content/dam/aba/images/office_president/lawyer_assistance_programs.pdf; ABA Commission on Lawyer Assistance Programs, “Proposed Resolution Regarding Model Regulatory Objectives,” January 11, 2016, http://www.americanbar.org/content/dam/aba/images/office_president/lawyer_assistance_programs_b%20.pdf.

[69] Solo Small Firm and General Practice Division, Memo to ABA Commission on the Future of Legal Services, undated, http://www.americanbar.org/content/dam/aba/images/office_president/solo_small_firm.pdf.

[70] New Jersey State Bar Association, Letter to ABA Commission on the Future of Legal Services, October 27, 2015, http://www.americanbar.org/content/dam/aba/images/office_president/new_jersey_state_bar_association.pdf.

[71] Lawrence J. Fox, “Burying the Lede,” 2015, 3-6, http://www.americanbar.org/content/dam/aba/images/office_president/larry_fox.pdf.

[72] Susan Beck, “Divided ABA Adopts Resolution on Nonlawyer Legal Services,” The American Lawyer, February 8, 2016, http://www.americanlawyer.com/id=1202749202171/Divided-ABA-Adopts-Resolution-on-Nonlawyer-Legal-Services#ixzz3zlhUQwOI.

[73] Ibid.

[74] Lorelei Laird, “ABA House Approves Model Regulatory Objectives for Nontraditional Legal Services,” ABA Journal, February 8, 2016, http://www.abajournal.com/news/article/house_approves_proposed_model_regulatory_objectives_for_nontraditional_lega/.

[75] Beck, “Divided ABA.”

[76] Resolution 105 Revised and Amended.

[77] See, for example, Deborah L. Rhode and Lucy Buford Ricca, “Protecting the Profession or the Public? Rethinking Unauthorized-Practice Enforcement,” Fordham Law Review 82 (2014): 2587-2610, http://fordhamlawreview.org/assets/pdfs/Vol_82/No_6/RhodeRicca_May.pdf; Laurel A. Rigertas, “The Legal Profession’s Monopoly: Failing to Protect Consumers,” Fordham Law Review 82 (2014): 2683-2703, http://fordhamlawreview.org/assets/pdfs/Vol_82/No_6/Rigertas_May.pdf; Benjamin H. Barton, “The Lawyer’s Monopoly—What Goes and What Stays,” Fordham Law Review 82 (2014): 3067-3090, http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=5008&context=flr; Pierce G. Hunter, “Constitutional Law— Unauthorized Practice of Law: Driving Legal Business Without a License, LegalZoom, Inc., and Campbell v. Asbury Automotive, Inc., 2011 Ark. 157, 381 S.W.3d 21.,” University of Arkansas at Little Rock Law Review 36 (2014): 201-228, http://lawrepository.ualr.edu/lawreview/vol36/iss2/5; Gerard J. Clark, “Internet Wars: The Bar Against the Websites,” Journal of High Technology Law XIII (2013): 247-296, https://www.suffolk.edu/documents/jhtl_publications/CLARKMACRO-FINALFINAL.pdf; George Leef, “Why The Legal Profession Says LegalZoom Is Illegal,” Forbes, October 14, 2014, http://www.forbes.com/sites/georgeleef/2014/10/14/why-the-legal-profession-says-legalzoom-is-illegal/#580de4037664. These types of assertions date back a century if not more and significantly increased in intensity with the Great Depression. See, for example, Hurst, The Growth of American Law, 319-322; Quintin Johnstone, “Unauthorized Practice Controversy: A Struggle Among Power Groups,” Kansas Law Review 4 (1955): 1-57, http://digitalcommons.law.yale.edu/fss_papers/1912.

[78] Robert Ambrogi, “Washington State Moves Around UPL, Using Legal Technicians to Help Close the Justice Gap,” ABA Journal, January 1, 2015, http://www.abajournal.com/magazine/article/washington_state_moves_around_upl_using_legal_technicians_to_help_close_the/; Gene Johnson, “Washington Experiments with More Affordable Legal Advice,” The Seattle Times, September 27, 2015, http://www.seattletimes.com/seattle-news/washington-experiments-with-more-affordable-legal-advice/.

[79] Zolan Kanno-Youngs, “Tenants in Maze of New York Courts Get a Helping Hand: The Court Navigator Program Guides People Who Don’t Have An Attorney Through Their Civil Case,” The Wall Street Journal, February 15, 2016, http://www.wsj.com/articles/tenants-in-maze-of-new-york-courts-get-a-helping-hand-1455591801.

[80] ABA Commission on the Future of Legal Services, “Issues Paper Concerning New Categories of Legal Services Providers,” October 16, 2015, http://www.americanbar.org/content/dam/aba/images/office_president/delivery_of_legal_services_completed_evaluation.pdf.

[81] Ibid., 2.

[82] ABA Commission on the Future of Legal Services, “Comments – Legal Services Providers Issues Paper,” accessed March 17, 2017, http://www.americanbar.org/groups/centers_commissions/commission-on-the-future-of-legal-services/Comments1.html.

[83] ABA Standing Committee on the Delivery of Legal Services, ABA Standing Committee on Group & Prepaid Legal Services and Group Legal Services Association, ABA Solo, Small Firm and General Practice Division, New Jersey State Bar Association, New York State Bar Association, Essex County Bar Association, Gloucester County Bar Association, Hunterdon County Bar Association, Middlesex County Bar Association, Monmouth County Bar Association, Somerset County Bar Association, Union County Bar Association, New Jersey Association for Justice, Lawrence J. Fox.

[84] ABA Business Law Section, ABA Standing Committee on Professionalism, Massachusetts Access to Justice Commission, New York Permanent Commission on Access to Justice, Responsive Law.

[85] ABA Standing Committee on Ethics and Professional Responsibility, ABA Standing Committee on Paralegals, ABA Standing Committee on Professional Discipline, National Organization of Bar Counsel.

[86] Bergen County Bar Association, Essex County Bar Association, Gloucester County Bar Association, Hunterdon County Bar Association, Middlesex County Bar Association, Monmouth Bar Association, Somerset County Bar Association, Union County Bar Association. See Comments – Legal Services Providers Issues Paper.

[87] New Jersey State Bar Association, Letter to Katy Englehart, December 28, 2015, http://www.americanbar.org/content/dam/aba/images/office_president/lspcomments_new_jersey_state_bar_association.pdf.

[88] Middlesex County Bar Association, Letter to Katy Englehart, December 3, 2015, http://www.americanbar.org/content/dam/aba/images/office_president/lspcomments_middlesex_county_bar_association.pdf.

[89] New York State Bar Association, Letter to Katy Englehart, December 22, 2015, http://www.americanbar.org/content/dam/aba/images/office_president/lspcomments_new_york_state_bar_association.pdf.

[90] ABA Solo, Small Firm and General Practice Division, Memo to ABA Commission on the Future of Legal Services, December 30, 2015, 4, http://www.americanbar.org/content/dam/aba/images/office_president/lspcomments_solo_small_firm_and_general_practice_division.pdf.

[91] Responsive Law, “Comments on: Issues Paper Concerning New Categories of Legal Services

Providers,” January 8, 2016, 1, http://www.americanbar.org/content/dam/aba/images/office_president/lspcomments_responsive_law.pdf.

[92] Ibid., 9.

[93] ABA Commission on the Future of Legal Services, “Issues Paper Concerning Unregulated LSP Entities,” March 31, 2016, 3, https://www.americanbar.org/content/dam/aba/images/office_president/final_unregulated_lsp_entities_issues_paper.pdf.

[94] Ibid., 4-5.

[95] Ibid., 8.

[96] The comments are available online: “Comments – Unregulated LSP Entities Issues Paper,” American Bar Association Commission on the Future of Legal Services, accessed March 20, 2017, https://www.americanbar.org/groups/centers_commissions/commission-on-the-future-of-legal-services/Comments3.html.

[97] See, for example, Broome County Bar Association, “Issues Paper Concerning Unregulated LSP Entities,” June 29, 2016, https://www.americanbar.org/content/dam/aba/images/office_president/broome_county_bar_association.pdf; New Jersey State Bar Association, “Comments on Issues Paper Unregulated LSP Entities,” April 28, 2016, https://www.americanbar.org/content/dam/aba/images/office_president/new_jersey_state_bar_association_unregulated.pdf.

[98] New York State Bar Association, “New York State Bar Association’s Comments on the ABA Commission on the Future of Legal Services’ Issues Papers On Legal Checkups, Unregulated LSP Entities  and Alternative Business Structures,” April 28, 2016, https://www.americanbar.org/content/dam/aba/images/office_president/new_york_state_bar.pdf.

[99] Avvo, Inc., “Unregulated Legal Service Provider Entities,” April 28, 2016, https://www.americanbar.org/content/dam/aba/images/office_president/avvo_unregulated.pdf; New England Litigation Technology Professionals, “For Comment: Issues Paper Concerning Unregulated LSP Entities,” April 28, 2016, https://www.americanbar.org/content/dam/aba/images/office_president/new_england_litigation_technology_professionals_board_of_directors.pdf; Responsive Law, “Issues Paper Concerning Unregulated Legal Service Providers,” April 28, 2016, https://www.americanbar.org/content/dam/aba/images/office_president/responsive_law_unregulated.pdf.

[100] ABA Standing Committee on Professionalism, “Comment On Issues Paper Concerning Unregulated LSP Entities,” April 28, 2016, 2, https://www.americanbar.org/content/dam/aba/images/office_president/professionalism_standing_committee_unregulated.pdf.

[101] Colorado Cross-Disability Coalition, “Comments on Civil Legal Service Providers,” April 24, 2016, https://www.americanbar.org/content/dam/aba/images/office_president/julie_reiskin.pdf; Richard Zorza, “Does the Concept of “Entity Regulation” Provide an Entry Point for Access Contribution Requrements [sic]”, April 2, 2016, https://www.americanbar.org/content/dam/aba/images/office_president/richard_zorza_unregulated.pdf.

[102] ABA Standing Committee on the Delivery of Legal Services, “Issues Paper on ‘Unregulated Legal LSP Entities,’” May 2, 2016, 4, https://www.americanbar.org/content/dam/aba/images/office_president/delivery_of_legal_services_unregulated.pdf.

[103] Resolution 105, American Bar Association, February, 2016, http://www.americanbar.org/content/dam/aba/images/abanews/2016mymres/105.pdf. See also Richard Zorza, “Good News from the ABA — Regulatory Objectives Adopted,” Richard Zorza’s Access to Justice Blog, February 9, 2016, http://accesstojustice.net/; Beck, “Divided ABA.”

[104] ABA Commission on the Future of Legal Services, “For Comment: Issues Paper Regarding Alternative Business Structures,” April 8, 2016, 2, http://www.americanbar.org/content/dam/aba/images/office_president/alternative_business_issues_paper.pdf.

[105] Ibid., 7-15.

[106] The responses can be consulted at this link: “Comments – Alternative Business Structures Issues Paper,” American Bar Association Commission on the Future of Legal Services, accessed March 17, 2017, https://www.americanbar.org/groups/centers_commissions/commission-on-the-future-of-legal-services/Comments4.html.

[107] More specifically, five respondents simply voiced their agreement with the response submitted by Texas Association of Defense Counsel, Texas Trial Lawyers Association, and Texas Chapters of the American Board of Trial Advocates.

[108] See, for example, D. Clark Smith, “Response to Commission’s Issues Paper Regarding Alternative Business Structures dated April 8, 2016,” April 29, 2016, https://www.americanbar.org/content/dam/aba/images/office_president/d_clark_smith_jr_abs.pdf.

[109] Each of these objections is addressed in detail in Snyder, Democratizing Legal Services, 1-93.

[110] See, for example, Jess C. Rickman, “ABS Survey–Rejection of the Proposal,” April 27, 2016, http://www.americanbar.org/content/dam/aba/images/office_president/jess_c_rickman_abs.pdf.

[111] See, for example, DRI – The Voice of the Defense Bar, “Issues Paper Regarding Alternative Business Structures,” 4.

[112] International Association of Defense Counsel, “ABA Commission on the Future of Legal Services – Alternative Business Structures,” May 3, 2016, 1, http://www.americanbar.org/content/dam/aba/images/office_president/international_association_of_defense_counsel_abs.pdf.

[113] Greg Curry and Thompson & Knight, LLP, n.t., n.d., https://www.americanbar.org/content/dam/aba/images/office_president/greg_curry_and_thompson_and_knight_abs.pdf.

[114] Illinois State Bar Association, “Issues Paper Regarding Alternative Business Structures: Request for Comments,” n.d., http://www.americanbar.org/content/dam/aba/images/office_president/illinois_state_bar_association_abs.pdf.

[115] New York State Bar Association, “New York State Bar Association’s Comments,” 7.

[116] Matthew Walko, “Comment on ABA’s Issues Paper Regarding Alternative Business Structures dated April 8, 2016,” April 25, 2016, http://www.americanbar.org/content/dam/aba/images/office_president/matthew_walko_abs.pdf.

[117] J. Michael Weston, “ABA Commission on the Future of Legal Services – Alternative Business Structures,” April 27, 2016, http://www.americanbar.org/content/dam/aba/images/office_president/lederer_weston_craig_abs.pdf.

[118] Los Angeles County Bar Association, “Comment of the Los Angeles County Bar Association to the American Bar Association’s Commission on the Future of Legal Services Regarding Alternative Business Structures,” April 29, 2016, 3, https://www.americanbar.org/content/dam/aba/images/office_president/los_angeles_county_bar_association_abs.pdf.

[119] Laura Bellegie Sharp, “Comments Regarding the Alternative Business Solutions Issues Paper,” April 28, 2016, 2, http://www.americanbar.org/content/dam/aba/images/office_president/laura_sharp_abs.pdf.

[120] Terrence T. Snook, “Proposal to Allow ABS (Non Lawyer Ownership of Law Firms) and MDPs (Multi Disciplinary Programs),” April 28, 2016, https://www.americanbar.org/content/dam/aba/images/office_president/terry_snook_abs.pdf.

[121] Illinois State Bar Association, “Issues Paper Regarding Alternative Business Structures,” 4.

[122] Tort Trial & Insurance Practice Section, “ABA Commission on the Future of Legal Services / Issue Paper Regarding Alternative Business Structures,” May 6, 2016, 1, http://www.americanbar.org/content/dam/aba/images/office_president/tips_abs.pdf.

[123] James T. Murphy, “Comment: Issues Paper Regarding Alternative Business Stuctures [sic],” April 26, 2016, http://www.americanbar.org/content/dam/aba/images/office_president/james_t_murphy_abs.pdf.

[124] Forum on the Entertainment and Sports Law Industries, “ABA Commission on the Future of Legal Services — Issues Paper on Alternative Business Structures/Comments Requested,” May 3, 2016, http://www.americanbar.org/content/dam/aba/images/office_president/entertainment_and_sports_abs.pdf.

[125] Middlesex County Bar Association, “Issues Paper Regarding Alternative Business Structures,” May 6, 2016, 3, http://www.americanbar.org/content/dam/aba/images/office_president/middlesex_county_bar_association_abs.pdf.

[126] Michael J. Sullivan, “Alternative Business Structures,” April 26, 2016, https://www.americanbar.org/content/dam/aba/images/office_president/michel_j_sullivan_abs.pdf.

[127] Robert MacCrate, a former President of the ABA, is credited as the driving force behind the resolution that the ABA House of Delegates adopted in 2000 stating: “The sharing of legal fees with nonlawyers and the ownership and control of the practice of law by nonlawyers are inconsistent with the core values of the legal profession. The law governing lawyers, that prohibits lawyers from sharing legal fees with nonlawyers and from directly or indirectly transferring to nonlawyers ownership or control over entities practicing law, should not be revised.” See John Gibeaut, “’It’s a Done Deal’: House of Delegates Vote Crushes Chances for MDP,” ABA Journal 9 (2000): 92-93, http://www.jstor.org/stable/27841689; Paul D. Paton, “Multidisciplinary Practice Redux: Globalization, Core Values, and Reviving the MDP Debate in America,” Fordham Law Review 78 (2010): 2209, http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=4527&context=flr.

[128] Lawrence J. Fox, “What Would Bob MacCrate Think?”, n.d., http://www.americanbar.org/content/dam/aba/images/office_president/lawrence_j_fox_abs.pdf.

[129] Henry Mills Gallivan, “ABA Proposal in Alternative Business Structures,” April 28, 2016, http://www.americanbar.org/content/dam/aba/images/office_president/henry_mills_gallivan_abs.pdf.

[130] Benjamin H. Hill, III, “Non-Lawyer Ownership of Law Firms,” April 25, 2016, http://www.americanbar.org/content/dam/aba/images/office_president/benjamin_j_hill_abs.pdf.

[131] Christopher G. Betke, “Proposal for ABS,” April 28, 2016, http://www.americanbar.org/content/dam/aba/images/office_president/christopher_g_betke_abs.pdf.

[132] Laura Bellegie Sharp, “Comments Regarding the Alternative Business Solutions Issues Paper,” 2.

[133] Paula Hudson Holderman, “Commentary on the Report from the ABA’s Commission on the Future of Legal Services,” April 27, 2016, http://www.americanbar.org/content/dam/aba/images/office_president/paula_hudson_holderman_abs.pdf.

[134] Blake Edwards, “The Debate Over Non-Lawyer Firm Ownership Is Officially Closed, For Now,” Bloomberg Law, May 17, 2016, https://bol.bna.com/the-debate-over-non-lawyer-firm-ownership-is-officially-closed-for-now/.

[135] Mark Behrens and Christopher Appel, “Controversial ABA Alternative Business Structures Proposal Stalls…Again,” IADC Committee Newsletter, June, 2016, 7.

[136] ABA Commission on the Future of Legal Services, “Report on the Future of Legal Services in the United States,” August, 2016, 6, http://abafuturesreport.com/#1 (“Futures Commission Final Report”).

[137] Ibid., 41.

[138] Ibid., 6, 45-47.

[139] Ibid., 43.

[140] Ibid., 6, 48.

[141] Jayne Reardon, “ABA Commission’s Future of Legal Services Report: A Clarion Call for Action,” 2Civility, August 11, 2016, https://www.2civility.org/aba-commissions-future-of-legal-services-report-a-clarion-call-for-action/.

[142] Robert Ambrogi, “ABA Future Panel Calls for Broad Changes in Legal Services,” Above the Law, August 8, 2016, http://abovethelaw.com/2016/08/this-week-in-legal-tech-aba-future-panel-calls-for-broad-changes-in-legal-services/.

[143] Alberto Bernabe, “ABA Commission on Future of Legal Services issues Its Final Report; I Am Not Particularly Impressed – UPDATED,” Professional Responsibility Blog, August 11, 2016, http://bernabepr.blogspot.fr/2016/08/aba-commission-on-future-of-legal.html.

[144] Dan Harris, comment on Renee Knake, “ABA Commission on Future of Legal Services Responds,” Lexblog, August 24, 2016, http://kevin.lexblog.com/2016/08/24/aba-future-delivery-legal-services-responds/.

[145] Victor Li, “ABA’s New Center for Innovation Will Drive Efforts for New Methods of Delivering Legal Services,” ABA Journal, November 1, 2016, http://www.abajournal.com/magazine/article/aba_center_for_innovation.