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.

Leave a Reply

Your email address will not be published. Required fields are marked *