We want to understand how we as regulators can help attorneys...to have the tools they need to build an ethical infrastructure. In our opinion, the best way to do that right now is to develop a self-assessment form for attorneys who are in private practice.
Operating under the authority of the Colorado Supreme Court, the Office of Attorney Regulation Counsel educates, regulates, licenses and disciplines the lawyers of the state of Colorado.
Our state has 39,229 registered lawyers, of which 26,500 are active. Of those active attorneys, approximately 16,500 are in private practice, either as sole practitioners or with a small, medium or large firm (the remaining active lawyers work either as in-house counsel or in government positions).
When I look at the work of the Solicitors Regulation Authority (SRA) in England and Wales, I see that they spend a lot of time assessing risks and identifying ways to reduce those risks and to improve client services. Here in Colorado we do not have the resources of the SRA, but I think there is still a lot we can do. This is especially the case if we use the English and Australian models to guide us.
When the ABA House of Delegates met in February, 2016 to discuss the proposed Regulatory Objectives, they ended up adopting them with two significant changes. The first change related to lawyer wellness programs: this is a change that I strongly encouraged because I think that such programs pay great dividends. The second change clarified that the ABA has not changed its position with respect to nonlawyer ownership of law firms. This change reflects an undercurrent of fear in the US that nonlawyer ownership will cause our institutions to change too much, such that we lose client confidentiality and the ethos of the lawyer-client relationship.
In Colorado, our focus is on how we can improve the provision of legal services in our state. In particular, we want to understand how we as regulators can help attorneys, and especially sole practitioners and those in small firms, to have the tools they need to build an ethical infrastructure. In our opinion, the best way to do that right now is to develop a self-assessment form for attorneys who are in private practice.
Not only do we want to develop a powerful tool, but also we want to develop incentives for practitioners to use it. For example, we can offer CLE credit for training programs on how to use the tool. We can develop a kind of certification program akin to the one offered by the Better Business Bureau, to indicate that a firm has completed the self-assessment process and verified compliance. We may be able to negotiate insurance premium reductions for participants.
At first, we’ll run the program as a pilot project. After a couple of years or so, once Colorado lawyers have become familiar and comfortable with the process and recognize its benefits, we may consider developing a mandatory program. That program could include, for example, entity registration and the requirement that each firm appoint a compliance officer.
It’s baby steps. We understand that there are some who are fearful of change, and we are sensitive to that. We also want to collaborate with the general public and Colorado lawyers on how to regulate in the most effective manner.
The reason that England and Wales as well as Australia adopted PMBR is because their systems were changed to allow for nonlawyer ownership. While their systems are not perfect, they also offer a lot of advantages. In Colorado, we are probably not ready to go as far as England and Wales and Australia, but I think we are ready for more proactive approaches that improve lawyer competence, diligence and client service. And when we are ready for more, we’ll do more.
Lawyers today struggle with the concepts of self-governance and the public interest. Since the 19th century, lawyers have taken for granted that self-governance is in the public interest. I think we need to challenge that. We need to make sure that regulation is done through the lens of the public interest. In Colorado we are trying to do this, for example, by increasing consumer choice through lawyer mobility and by revising our continuing legal education (CLE) program. More specifically as regards CLE, we would like both to make it more meaningful and useful for lawyers, and to make information about individual lawyers’ compliance available to the public. In this way we believe we can increase lawyer commitment to professional development. We are also studying alternative regulated legal service provider programs.
Colorado has an advantage over other states with respect to the regulation of legal services. The Office of Attorney Regulation Counsel is a cradle to grave shop: we handle attorney admission and registration as well as CLE, discipline and unauthorized practice of law. This has enabled us approach the regulatory function in a holistic manner. Further, this means that we are not compartmentalized in silos of confidentiality, like most other states are. That is, our office has access to all attorney admission and registration information, to all CLE information, and to all discipline information. We can analyze all of this information together in order to understand patterns and where risks lie. We can understand to what extent our admissions policies are successful. We can connect discipline issues to firm structures and other aspects of lawyer practice, such as practice areas. This allows us to anticipate discipline issues and take actions to reduce their occurrence. Very few states have this ability.
Colorado has a history of regulatory innovation as compared to other states. For example, in the 1990s, we were one of the first states to put in place a central intake system for complaints, and we were the first to make it telephone-based. When my predecessor and then employer told regulators in other states that we were planning such a system, we were laughed out of the room. We were told that we were crazy, because it would result in triple if not quadruple the number of complaints, and most of those would be unfounded. It is much better, we were told, to require the complainant to make their complaint in writing. In that way, they will spend time tailoring their complaint to the rules of professional conduct. We went ahead with our system anyway. And the other regulators were right, it did quadruple the number of complaints we received. But this had great value. It allowed us to speak with these people. It gave us the opportunity to explain why the attorney was doing what they were doing, and why it was exactly what the attorney was supposed to be doing. We could also help to re-connect the client and the attorney, on the basis of better communication channels. In that way, we could help improve the attorney-client relationship. Further, if something really was wrong with an attorney — for example, if six different clients called in complaining that the same attorney is not responding to calls — our system gave us a means to know that and take action quickly. This reduced further client harm and allowed us to help steer the attorney back on track.
Today in Colorado we have established two subcommittees, one to study PMBR and the other to study an alternative legal service provider programs, such as Limited License Legal Technicians (LLLT) or Navigators.
The topic of a LLLT program is a controversial one, and the voluntary bar in Colorado is currently opposed to this. This is something we will continue to work on, and I remain hopeful that eventually we will adopt a program of some kind here in Colorado. I believe that are many functions that people who are not fully trained as lawyers can fulfill more than adequately. An LLLT program increases consumer choice, availability of legal services and competition. Further, in my opinion and as any economist would argue, an LLLT program should also result in increased business for lawyers, because it increases the opportunities for issues that do require the involvement of a lawyer to be identified and, indeed, referred to a lawyer.
In contrast to LLLT, proactive risk and management based programs are not as controversial.
Our subcommittee for PMBR is comprised of a broad range of lawyers (sole practitioners, small, medium and large firms) and of the voluntary bar associations, including some who are opposed to LLLT. The committee also includes experts in professional liability as well as ethics. Finally, the subcommittee includes a representative of the Better Business Bureau, to learn from its Standards for Trust and other programs.
The self-assessment form that we are developing in Colorado is based upon ten principles for law firm ethical infrastructure. In identifying the ten principles, we were greatly inspired by Nova Scotia’s Management Systems for Ethical Legal Practice. Perhaps the most significant difference between Nova Scotia’s and ours is that we have added a principle relating to attorney wellness and inclusivity. I think we are the first in the world to elevate attorney wellness to this level of importance.
Our ten principles include “working to improve the administration of justice and access to legal services.” As regulators, I think that we need to do a better job of helping attorneys to understand how they can have an economically viable law practice while representing clients of modest means. A part of this is considering what other business models attorneys can use: unbundled legal services, modest means programs, legal needs inventories (or check-ups). Lawyers only serve about 15% of the legal services market; how can we as regulators help lawyers to reach a greater share of the market?
I think that there are many improvements we could make to how we provide legal services, in order to make them more accessible. We could be inspired by how urgent care facilities have made medical services more accessible. For example, why couldn’t we establish legal clinics in shopping centers: A place where, on a Saturday morning lawyers could meet with clients and, for example, prepare wills on the spot? This is possible, but not by lawyers working on their own: they would need to work with business experts, process experts, IT experts. These are levels of resources that law firms today don’t have. I think it is possible to get these resources to law firms in ways that would preserve the rules of professional conduct and at the same time make legal services more consumer-friendly and responsive to consumer needs. Australia as well as England and Wales demonstrate that this is the case. But making the changes to allow for this in the U.S. will require time.
Very little of what we are doing in Colorado is unique or original. To better understand it, all you need to do is sit down and read what is going on in the rest of the world: England, Australia, Nova Scotia, British Columbia,… We’re just taking what we like from their systems and adapting it to Colorado. And we believe that both lawyers and clients will benefit from it. It’s a win-win for everyone involved, and it just makes sense.
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