Options for Regulatory Reforms to Promote Access to Justice

The State Bar seeks public comment on proposals for regulatory reforms developed by the Task Force on Access Through Innovation of Legal Services (ATILS)

Deadline: September 23, 2019

Background

Under the authority of the Supreme Court of California, the State Bar of California regulates attorneys and the practice of law in California. The State Bar maintains rules of professional conduct for attorneys and enforces those rules as well as coordinates with law enforcement to enforce laws prohibiting those without a law license from providing legal services.

The State Bar is governed by a Board of Trustees. In 2018, the Board received a Legal Market Landscape Report suggesting that some of the rules and laws governing the legal profession may be hindering innovations that could expand the availability of legal services. The Board appointed a Task Force on Access Through Innovation of Legal Services (ATILS) and assigned it to identify possible regulatory changes to remove barriers to innovation in the delivery of legal services by lawyers and others. ATILS was charged with balancing dual goals: consumer protection and increased access to legal services.

Discussion/Proposal

ATILS has developed 16 concept options for possible regulatory changes, and the Task Force is now seeking public input to help evaluate these ideas.

The 16 options include some that overlap and some that represent alternative approaches to a particular regulatory change. For example, ATILS is considering two different rule changes addressing whether a lawyer should be allowed to share a fee with a nonlawyer and would like public input on both of them. The key regulatory issues addressed by the options on which ATILS is seeking public comment include:

  • Narrowing restrictions on the unauthorized practice of law (UPL) to allow persons or businesses other than a lawyer or law firm to render legal services, provided they meet appropriate eligibility standards and comply with regulatory requirements;
  • Permitting a nonlawyer to own or have a financial interest in a law practice; and
  • Permitting lawyers to share fees with nonlawyers under certain circumstances and amending other attorney rules regarding advertising, solicitation, and the duty to competently provide legal services.

The potential benefit of these changes could include:

  • Improving the ability of new providers to enter the legal services market;
  • Creating incentives for innovators to collaborate with lawyers to develop technology-driven solutions; and
  • Expanding options for entities and individuals other than lawyers to support and participate in these developments through business ownership and capital investment.
  • Limiting the new UPL exceptions to only those providers who meet eligibility qualifications and become regulated;
  • Requiring the establishment of ethical standards comparable to those imposed on lawyers and law firms;
  • Conditioning the new system on the establishment of equivalent protections afforded by the attorney-client privilege and a lawyer’s ethical duty of confidentiality; and
  • Including in the revised fee-splitting rule a provision prohibiting interference with a lawyer’s independent professional judgment.

ATILS carefully considered public protection in developing the proposed concept options by:

  • Limiting the new UPL exceptions to only those providers who meet eligibility qualifications and become regulated;
  • Requiring the establishment of ethical standards comparable to those imposed on lawyers and law firms;
  • Conditioning the new system on the establishment of equivalent protections afforded by the attorney-client privilege and a lawyer’s ethical duty of confidentiality; and
  • Including in the revised fee-splitting rule a provision prohibiting interference with a lawyer’s independent professional judgment.

Some of the proposals would require that a subsequent implementation body evaluate and plan implementation strategies and details. Further work might, for example, involve pilot programs or changes in statutory laws with sunset provisions.

After considering any public comment received, the task force will prepare a final report to be submitted to the Board no later than December 31, 2019.

Any fiscal/personnel impact

None

Background material
Source

State Bar Standing Committee on Professional Responsibility and Conduct

Deadline

September 23, 2019

Direct comments to

Comments should be submitted using the online Public Comment Form. The online form allows you to enter your comments directly and can also be used to upload a comment letter and/or other attachments. Please target comments to a specific option or proposal where possible. In cases where alternative options are offered, comments specific to each of the alternatives would be most useful.There is also a place in the form to offer general comments on the proposed options.

However, if you cannot use the online form, comments may be submitted by mail to the address indicated below.

Angela Marlaud
Office of Professional Competence, Planning and Development
State Bar of California
180 Howard Street
San Francisco, CA 94105
Phone: 415-538-2116
E-mail: atils-pc@calbar.ca.gov