At the most recent meeting of the ABA’s House of Delegates several interesting proposals were discussed, including a resolution urging the United States to record its oral arguments and to make the videotapes available to the public. However, this was far from the most controversial item on the ABA’s agenda. Resolution 105, which was adopted despite its many outspoken detractors, was easily the most debated item on the agenda. Resolution 105 gives the “states a framework to consider the regulation of ‘nontraditional legal service providers.’” The resolution comes as a result of the ABA’s realization that “[p]roviders of legal assistance other than lawyers are already actively serving the American public” and that “[t]he legal landscape is changing at an unprecedented rate.”
Much of this change can be attributed to an increased use of technology in the legal field which has made non-traditional legal service providers more prevalent and created a viable alternative to traditional services.
“In 2012, investors put $66 million into legal service technology companies. By 2013, that figure was $458 million.” Some states, recognizing this change, have already created guidelines to regulate non-lawyers performing legal work for clients. In Washington, Limited License Legal Technicians are able to assist clients in certain family-law matters with the real possibility that this license will be extended to other areas of the law such as elder law and landlord-tenant disputes. Meanwhile, both California and Utah have made significant steps to implement similar systems.
While Resolution 105 may seem innocuous at first glance, it sparked one of the fiercest debates the ABA has seen in many years. Opponents of the resolution claimed that this would open the door for non-lawyers to “steal” clients and work away from traditional legal professionals. Furthermore, the opposition argued that this would lead to a substantial deterioration in the quality of services provided to clients because the work of non-lawyers would not be supervised by experienced lawyers. Non-lawyers are not bound by the same ethical codes which could also lead to lower quality legal services. These factors would, according to some detractors, produce a legal environment where big corporations and affluent clients would continue to seek legal services from traditional law firms while the poorer clients and small businesses would be forced to choose the most cost effective option, the non-lawyer legal services.
On the flip side, supporters of Resolution 105, including former ABA president William Hubbard, see the possibility of non-lawyers performing some types of legal services as a positive move in the long run. Hubbard sees these forms of non-traditional legal services as inevitable and thinks they will continue to operate regardless of what action the ABA takes. In Hubbard’s view the legal community is “not going to put the Internet back in a bottle” so the ABA should “stand up and lead.” Other resolution proponents cite the growing justice gap, where many Americans are priced out of effective legal representation, as the main reason behind their support. George Washington law professor Stephen Saltzburg is one such member of the legal community supporting the resolution. According to Saltzburg “[t]he reality is we will not be able to provide enough lawyers to represent everyone who needs legal help.”
The two groups that could be most affected by ABA Resolution 105 are young lawyers and law students. These two groups are operating in a legal market that has been greatly affected by the 2009 recession. It is no secret that job openings are not as plentiful as they once were and many young lawyers, burdened with student loan debt, are feeling the squeeze. In many respects, Resolution 105 will only serve to increase the pressure these two groups feel as they search for jobs and clients by creating more competition in the legal market. The debate over Resolution 105 focuses on a complicated issue during a transformative period in the legal world. We can all agree that competent legal services should be extended to everyone in need in an affordable and efficient way, but this should not be done at the young lawyer’s expense. The ABA should keep this in mind as it moves forward creating new rules and procedures to facilitate the practice of law by non-lawyers and non-traditional legal services.