Deregulation: The Changing Legal Services Landscape

By: M. Jerry McHale, QC

On the one hand, access reports are telling us that the status quo – inaccessible courts and unmet legal needs - is dangerous and unsustainable. On the other, more than two decades of reform efforts have produced little or no real improvement.  As durable as the status quo clearly is, cracks from the mounting pressure of the access to justice imperative are starting to show. One of the more interesting pressure points in this standoff between stasis and change involves initiatives to bring non-lawyers inside the legal profession’s regulatory framework.  This form of deregulation (a.k.a. “liberalization”) is driven by concerns over the chronic access gap as well as by a growing belief that deregulation can be commercially profitable.

On February 9th of this year the American Bar Association (ABA) House of Delegates took a large stride in the direction of the future by approving Resolution 105: Model Regulatory Objectives for the Provision of Legal Services. The resolution, which lays out principles intended to guide the regulation and credentialing of non-lawyer legal service providers, had been endorsed a few days earlier by the US Conference of Chief Justices.[1]  Specific objectives set out in the resolution refer to public protection, affordable access to justice, and ensuring competent and ethical legal services.[2]  Debate around the Resolution was contentious.  Those for the resolution argued the growing need for affordable access as well as the inevitability in the age of the internet - regardless of the ABA position - of non-lawyer legal service provision.[3] The possibility of non-lawyer ownership in law firms was not part of this discussion, but the ABA has since published an issues paper on this topic and asked for comments.[4] The final language of the resolution is that the ABA “urges each state’s highest court…to be guided by the…Objectives…when they assess the court’s existing regulatory framework and any other regulations they may choose to develop concerning non-traditional legal service providers.”

The resolution occurs in a context where some American states are already venturing into non-layer practice. Washington State has created a regime of “Limited License Legal Technicians” who are authorized to perform a range of legal functions. They can’t represent parties in court but they can consult, provide advice, complete forms, file documents, and help steer litigants through the family justice system (with additional practice areas to follow). The Washington State Bar Association website says, “Think of them like nurse practitioners, who can treat patients and prescribe medication like a doctor.”[5] They can work with lawyers or independently, and will be held to the practice and ethical standards of lawyers.

A report of the Professional Responsibility Committee of the New York City Bar, observes that non-lawyers are already playing a limited role, and could play a “crucial role” in responding to the justice gap. It recommended recognizing a role for “Courtroom Aides” and “Legal Technicians” while exploring “additional roles … including limited authorizations of non-lawyers to render certain types of legal advice, conduct financial negotiations, and advocate in court…”[6]

Of course, the relevance of this is that the forces driving acceptance of non-lawyer service providers in the USA are equally at work elsewhere. The 2014 Access to Justice Arrangements Report of the Australian Productivity Commission observed:

In Australia, non‑legal professionals have, for some time, been providing advice (and in some cases advocacy) in a range of areas including conveyancing, intellectual property, workplace relations, taxation and migration. The Commission considers that allowing non‑lawyers to perform some legal tasks has significant potential to improve accessibility and recommends that a taskforce be established to design and implement limited licences, with an initial focus on family law.[7]

In Canada, Ontario and BC are leading the way in creating an expanded niche for non-lawyers inside a modified regulatory framework.  Under the Ontario model, “paralegals” are licensed as a separate and distinct legal discipline, regulated by the Law Society. Taking a somewhat different approach, the Law Society in BC has created an expanded role for “designated paralegals” who may give legal advice, represent clients before a court or tribunal (as permitted by the court or tribunal), and represent clients at a family law mediation – all under the supervision of lawyers.  On another front, the BC Law Society and the Society of Notaries Public have signed an MOU to explore the possibility of merged regulatory operations with the Law Society as regulator. The terms of reference speak of preserving the Notaries’ separate identity and expanding their scope of practice.[8]

These developments engage important questions about the future of the profession’s monopoly over the delivery of legal services and the implications for legal professionalism. The Governor General of Canada, the Right Honourable David Johnston, touched on these questions in a speech to a national Canadian Bar Association conference in 2011.  He observed that in exchange for the profession’s privileges it assumes a responsibility to meet certain social needs.

 “We enjoy a monopoly to practise law. In return, we are duty bound to serve our clients competently, to improve justice and to continuously create the good. That’s the deal. What happens if we fail to meet our obligations under the social contract? Society will change the social contract, and redefine professionalism for us. Regulation and change will be forced upon us - quite possibly in forms which diminish or remove our self-regulatory privilege.”[9]

SCC Chief Justice Beverley McLachlin touched on similar themes in a 2011 speech, where she said, "If you're the only one who can provide a fundamental social need from which you benefit, I think it follows that you have to provide it … You have to find a way to provide it for everybody."[10] And, four years later - reflecting perhaps the progress of this issue in the intervening period - she observed that, “Everywhere, more and more, the profession is accepting that the old monopolies are fading and that the profession must embrace new ways of doing business… The question is not whether the rules governing the legal profession should be liberalized, but how.”[11]

How far will deregulation ultimately go? The answer is, however far it has to go to adequately serve the public good. There is a threshold level of access to justice that is simply indispensable to the maintenance of social and commercial order. To the extent that the legal profession fails to provide viable levels of access, society will change the rules and capitalism will generate the mechanisms to get legal needs met in other ways and by different entities.  

[1] See Resolution 9 (February 2016) “Recommending Consideration of ABA Model Regulatory Objectives for the Provision of Legal Services” https://richardzorza.files.wordpress.com/2016/02/ccj-2016-res-9.pdf

[2] The resolution is a product of the ABA Commission on the Future of Legal Services. A copy of the resolution is available online at http://www.americanbar.org/content/dam/aba/images/abanews/2016mymres/105.pdf

[3] ABA Journal, February 8, 2016 “ABA House approves model regulatory objectives for non-traditional legal services” online at http://www.abajournal.com/news/article/house_approves_proposed_model_regulatory_objectives_for_nontraditional_lega

[4] See ABA Journal, April 25, 2016, ”Should non-lawyers be allowed to own law firms? Online athttp://www.abajournal.com/mobile/article/should_nonlawyers_be_allowed_to_own_law_firms_aba_commission_revisits_the_i/

[5] See http://www.wsba.org/licensing-and-lawyer-conduct/limited-licenses/legal-technicians

[6] Narrowing the Justice Gap: Roles for Non-lawyer Practitioners, June 2013, online at http://www2.nycbar.org/pdf/report/uploads/20072450-RolesforNonlawyerPractitioners.pdf

[7] Overview at p. 21, online at http://www.pc.gov.au/inquiries/completed/access-justice/report

[8] See http://www.lawsociety.bc.ca/docs/home/blog/MOU-Notaries.pdf

[9] CBA Canadian Legal Conference - The Legal Profession in a Smart and Caring Nation: A Vision for 2017, online at  http://www.gg.ca/document.aspx?id=14195[10] Kirk Makin, Access to justice becoming a privilege of the rich, judge warns, The Globe and Mail, Feb. 10, 2011. Online athttp://www.theglobeandmail.com/news/national/access-to-justice-becoming-a-privilege-of-the-rich-judge-warns/article565873/

[11] The Legal Profession in the 21st Century, Remarks of the Right Honourable Beverley McLachlin, P.C. Chief Justice of Canada at the 2015 Canadian Bar Association meeting, Calgary, Alberta, online at http://www.nationalmagazine.ca/NationalMagazine/media/MediaLibrary/pdf/2015-08-mclachlin.pdf