Restrictions in the model rules of professional conduct
The primary obstacles to the proposed reforms are found in the ABA’s Model Rules of Professional Conduct, originally promulgated in 1983 and since adopted by nearly all U.S. jurisdictions to govern the legal profession within their territories.- Model Rule 5.4 – This rule aims to protect the “professional independence” of lawyers by prohibiting them from sharing fees with nonlawyers.
- Model Rule 5.5 – This rule prohibits the “unauthorized practice of law” to protect the public against the rendition of legal services by unqualified persons. Simply put, the rule bars nonlawyers from providing legal services without the supervision of an attorney.
ABA Resolution 115 encouraging regulatory innovation
To address these concerns, the ABA adopted Resolution 115 in 2020. The Resolution aims “to help the more than 80% of people below the poverty line and the many middle-income Americans who lack meaningful access to effective civil legal services.” This move represents one more step toward achieving social justice by providing the meaningful access these demographics currently lack. It also represents one more step toward opening a marginalized and largely untapped sector of the legal market. Good intentions aside, however, the Resolution makes no move to loosen the restrictions imposed by Model Rules 5.4 and 5.5. On the one hand, it encourages jurisdictions to “consider regulatory innovations that have the potential to improve the accessibility, affordability, and quality of civil legal services, while also ensuring necessary and appropriate protections that best serve clients and the public . . .” On the other, it makes clear that “nothing in this Resolution should be construed as recommending any changes to any of the ABA Model Rules of Professional Conduct, including Model Rule 5.4, as they relate to nonlawyer ownership of law firms, the unauthorized practice of law, or any other subject.”Paraprofessional Case Studies: Utah and Arizona
Notwithstanding the ABA’s reluctance to enact widespread change unilaterally, a handful of states have taken matters into their own hands. Arizona, California, Michigan, Minnesota, North Carolina, Oregon, Utah, and Washington are among those that have already launched or are considering reform programs. Two of the most prominent programs currently deployed are in Utah and Arizona. [5] The supreme courts in both Utah and Arizona have first moved to abolish the prohibition in Model Rule 5.4 against nonlawyers owning law firms. As explained in a press release by the Arizona Supreme Court, these changes are motivated by a sentiment that “lawyers have an ethical obligation to assure that legal services are available to the public and that if the rules stand in the way of making those services available, the rules should change.” The changes do not stop there. In Utah, Rule 14-802 of the Rules Governing the Utah State Bar creates an exception to the general prohibition against the unauthorized practice of law that allows “Licensed Paralegal Practitioners” (LPPs) to offer services in the following practice areas:- Specific family law matters, such as temporary separation, divorce, parentage, cohabitant abuse, civil stalking, custody and support, or name change;
- Forcible entry and detainer; and
- Debt collection matters in which the dollar amount at issue does not exceed the statutory limit for small claims cases.
- Family law
- Civil practice
- Criminal law
- Administrative law
- Juvenile law
See How It Works