What will it mean for law schools if states ease UPL restrictions?
“The vast majority of people in Arizona just can’t afford an attorney, no matter how great of a system we have,” said council member David K. Byers, who spoke on the panel. Byers is the administrative director of Arizona courts and a member of a state task force on legal services delivery. The task force was created by an administrative order from Scott Bales, the state’s former chief justice, who is also a council member.
In October, the Arizona task force issued a report with recommendations, including the elimination of Arizona’s Rule of Professional Conduct 5.4. It’s based on Rule 5.4 of the ABA’s Model Rules of Professional Conduct, which restricts partnerships with nonlawyers in the practice of law.
A rule petition with the task force recommendations will be filed in January, and after notice and comment, the Arizona Supreme Court will vote on the recommendations in August, Byers said.
Meanwhile, the Utah Supreme Court in August voted to pursue a regulatory reform working group’s recommendations, which included either eliminating or relaxing its Rule 5.4.
An implementation task force is putting together ground rules to create a new regulatory body for legal services entities, Brigham Young University law dean Gordon Smith told the council. Smith is also a working group member.
At BYU, a task force is investigating an undergraduate major in law.
“There is some concern that we might be cannibalizing the JD program. If these regulations succeed in opening up new levels of licensure, then we’re likely to see people moving into undergraduate legal education,” said Smith, who doesn’t think law school classes will get much larger than they are now.
“I see it as being more likely that we will have lots of undergraduates, and the JD will become more like an advanced degree for a specialized legal practice at the high end of the market,” he said.
Daniel B. Rodriguez, a former law school dean of Northwestern University and chair of the governing council of the ABA Center for Innovation, also spoke on the panel. Along with various ABA standing committees, the center submitted a resolution to the ABA House of Delegates for consideration at the 2020 ABA Midyear Meeting that encourages jurisdictions to consider regulatory innovation and examine existing regulations, including those related to the unauthorized practice of law.
In 2011, members of the ABA Commission on Ethics 20/20 released for comment a discussion paper about a limited form of nonlawyer ownership of law firms. Based on feedback from other bar associations and ABA members, the commission decided against submitting to the House of Delegates a proposal to change model rules that prohibit nonlawyers from owning law firms.
Examining data from what the states do with regulation changes, Rodriguez told the panel, is a value that will come with the experimentation.
“We can and we must ignore the premise that there are too many lawyers, or all of the lawyers are being protectionists, and the legal technology industry is a noble savior for access to justice. Of course the issue is more complicated than that. We should be looking at the data, and encouraging law professors to dig deep in this data,” Rodriguez said.
Besides allowing nonlawyers to perform some legal services, both the Arizona and Utah reports support regulation changes so that people who aren’t attorneys could invest and participate in businesses that provide legal services.
Panel members mentioned a 2018 report by William D. Henderson commissioned by the State Bar of California. The University of Indiana Maurer School of Law professor argues that while many people can’t afford lawyers, and a fair amount of lawyers have a hard time finding paying clients, the consumer protection aspect of restricting nonlawyers from owning legal services may not be helpful.
If states allow legal services businesses to be owned by people who are not attorneys, that could create more jobs for recent law school graduates, Henderson told the ABA Journal.
As the regulation is now, he added, there’s little incentive for top technology providers to get involved with legal services delivery because they can’t own the businesses.
“If you change Rule 5.4, capital could come in and handle things like lead generation, marketing and IT. Then you could have some scale, and you could put legal services in some places where traffic is,” Henderson says.
In other council business, the group passed a motion for proposed revisions to some accreditation standards and rules of procedure in response to new U.S. Department of Education regulations. The proposed revisions are scheduled to go out for notice and comment in 2020.
These revisions were listed in Nov. 5 memo and include requiring that law schools with provisional accreditation approval submit teach-out plans, and prohibiting acquiescence for substantive changes if a law school is on probation, or has been on probation in the past three years. An exception would be if the school could demonstrate that the change would help make progress toward full compliance, the memo states.
Also, the council on Thursday posted public notice that its appeals panel affirmed a June 2019 decision to withdraw approval of San Diego’s Thomas Jefferson School of Law. The law school was placed on probation in November 2017, and the council withdrew approval of the school in June 2019.
Thomas Jefferson must now submit for the council’s review a teach-out plan, which ensures that its current students who want to finish law school graduate from an ABA-accredited program. The school will remain open as a non-ABA accredited law school, with California accreditation, and new students will be admitted starting in the summer 2020 academic year, according to a statement from the law school.