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To Increase Access to Justice, Regulatory Innovation Should Be Considered, ABA House Says

Monday, February 17, 2020

To Increase Access to Justice, Regulatory Innovation Should Be Considered, ABA House Says

"The ABA House of Delegates passed a controversial resolution Monday to address the crisis of access to civil justice, encouraging states to adopt regulatory innovations to expand legal services to more Americans.

The House adopted Resolution 115 with broad support, even though it had spurred intense debate during the 2020 ABA Midyear Meeting in Austin, Texas.

The ABA Center for Innovation and four of the ABA Center for Professional Responsibility’s standing committees sponsored the resolution. It will encourage U.S. jurisdictions to consider regulatory innovations that expand legal services.

Speaking Monday in support of an amended resolution, Texas Judge Lora Livingston, a member of the ABA Center for Innovation’s governing council, encouraged delegates to adopt it.

“We don’t deny justice on the basis of race, gender or sexual orientation, and we should certainly not deny justice on the basis of poverty or one’s economic status. That’s not justice,” Livingston said.

A report to the House of Delegates said affordable legal assistance in civil cases is often beyond the grasp of many Americans living below the poverty line. Middle-income wage earners also struggle to secure representation in child custody, eviction and foreclosure cases.

Proponents of the access-to-justice movement argue that qualified professionals can provide limited legal services, even if they are not licensed attorneys.

Arizona, California, Connecticut, the District of Columbia, New Mexico, Oregon, Utah and Washington have proposed or created changes that have expanded access, according to the center’s report.

An earlier iteration of the report irked opponents when it cited U.S. Supreme Court Justice Neil M. Gorsuch, who has talked about easing bar rules that prevent lawyers from partnering or sharing fees with nonlawyers.

Several state bar associations were worried that changing rules of professional conduct could compromise a lawyer’s independence or ethics.

But by the time the amended resolution came to the floor Monday afternoon, opposition had faded.

Expressing how the tide had turned, Henry Greenberg, president of the New York State Bar Association, said his association was “full throated” in its opposition but had come around as changes were made to the final resolution and report.

Resolution 115 “is not just a right thing to do, the moral thing to do—for ourselves, for our clients—but for our profession it’s a smart thing to do,” Greenberg said.

Andrew Perlman, the former chair of the ABA Innovation Center and dean of Suffolk University Law School, pushed for amendments that would soften opposition and win support for the resolution. Over the weekend, proponents added language to the resolution to make clear that it would not alter any of ABA’s Model Rules of Professional Conduct.

The ABA Center for Innovation also removed several passages from the report, excising language related to nonlawyer partnerships and nonlicensed attorneys..."

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