American Bar Association American Bar Association in Chicago. Courtesy photo

The American Bar Association's House of Delegates passed a resolution to push for new approaches to the practice of law that would improve access to justice, but not before adding a disclaimer to address concerns raised by some state bar associations about outside investment in law firms.

An overwhelming majority of the House of Delegates agreed in a verbal vote Monday to approve Resolution 115, which encourages state regulators and state bar associations to explore regulatory innovations that could improve access to legal services, and to collect data on those programs. But the resolution also notes that it should not be construed as recommending any changes to the ABA Model Rules of Professional Conduct, including Rule 5.4, as they relate to nonlawyer ownership of law firms, the unauthorized practice of law, or any other subjects.

The vote in favor was near unanimous. Henry Greenberg, president of the New York State Bar Association, which had a few weeks ago raised concerns about elements of a report accompanying Resolution 115, spoke in support of the resolution at the meeting Monday.

"115 is not just the right thing to do, the moral thing to do for our clients, but for the profession it's the right thing to do. We know pro bono alone is not getting it done," Greenberg told the delegates when urging them to support the resolution. He noted that it does not dictate any changes state bar associations should make.

Two weeks ago, leaders of several state bar associations expressed opposition to 115, saying it would lead to outside investment in law firms or nonlawyers practicing law. New York bar leaders sent a letter to the ABA House of Delegates, the national group's main policymaking body, outlining their concerns.

State bar associations in Ohio, New Jersey, Illinois, Pennsylvania and Delaware also opposed the resolution in its previous form.

In an interview following Monday's vote, Greenberg said discussions over the last 10 days with sponsors of Resolution 115 led to revisions that allayed the New York bar's concerns.

The favorable vote at the ABA's midyear meeting in Austin is a "great day for lawyers [and] their clients," said Greenberg, a shareholder at Greenberg Traurig in Albany.

Lora Livingston, a state district judge in Austin who introduced the resolution at the meeting, urged delegates to support it because it seeks "real creative solutions" to the access-to-justice crisis the U.S. faces. It encourages people to think outside the box, she said, adding that it does not advocate any specific innovation or program.

Livingston is a member of the advisory counsel of the ABA Center for Innovation, which helped prepare the resolution in partnership with four ABA standing committees dealing with ethics and professional responsibility.

When the New York bar sent its opposition letter, Greenberg said, it pointed to sections of the report accompanying the drafted resolution that would violate New York rules prohibiting the unauthorized practice of law and outside investment in law firms. But the revised resolution and report eliminated the bar's concerns, he said.

No one spoke in opposition to the resolution during the House of Delegates meeting.

Some ideas intended to increase access to legal representation are already forming in states. Bar groups and courts in California, Utah and Arizona are pursuing proposals for fee-sharing with nonlawyers and permitting outside investment in law firms. The Chicago Bar Association also formed a task force to consider changes in Illinois.

The revised report does not recommend amendments to existing ABA model rules because more data is needed to determine which, if any, regulatory changes would encourage new models for "competent and cost-effective" legal services delivery.

Read More

ABA Could Encourage States to Allow Outside Ownership of Law Firms

Bar Groups Line Up Against 'Dangerous Changes' to Lawyer Regulation