NYSBA Plays Key Role in National Access to Justice Measure

By Christian Nolan

Hank Presenting at ABA

The New York State Bar Association played a crucial role in brokering the passage of an American Bar Association resolution that encourages state and local bar associations across the country to consider innovative approaches in expanding access to justice initiatives.

What was once a controversial proposal that NYSBA opposed, Resolution 115 was overwhelmingly supported by the ABA’s 596-member House of Delegates on Feb. 17 following a weekend of negotiations.

“We know pro bono alone is not getting it done,” NYSBA President Hank Greenberg told the ABA’s governing body. “We know that indigent legal service providers alone is not getting it done to serve the poor and the middle class. The American Bar Association today stands tall, it stands proud… because this resolution gives us the opportunity today, tomorrow and in the years to come to be the leader in solving the access to justice problem, serving the public, our clients and yes our profession.”

The resolution was initially proposed by the ABA Center for Innovation and supported by several standing committees of the ABA Center for Professional Responsibility. The measure calls for state regulators and bar associations to continue to explore regulatory innovations that have the potential to improve the accessibility, affordability and quality of civil legal services.

At least six states have proposed or adopted substantial regulatory changes that could loosen rules and others are considering similar proposals. For instance, California is considering allowing attorneys to share fees with nonlawyers and Utah has proposed allowing nonlawyers to invest in and own legal businesses.

NYSBA led the opposition to the initial resolution and accompanying 11-plus page report. In a letter sent to the ABA House of Delegates in late January, NYSBA – along with the state bar associations in Ohio, New Jersey, Delaware, Illinois and Pennsylvania – voiced their concerns with the initial proposal by arguing that it could lead to outside investment in law firms and unauthorized practice of law.

“In New York state, the prohibition against nonlawyer ownership of law firms, the prohibition against fee splitting, the prohibition against the unauthorized practice of law is something akin to theology – it is a fundamental principle that has been affirmed and reaffirmed on countless occasions by the New York State Bar Association’s governing body the House of Delegates,” said Greenberg.

Greenberg explained that the ABA’s initial report could be construed as contrary to what NYSBA believes are core principles of the profession. He said each and every concern was addressed, and the 11-plus page report was shrunk to just a page-and-a-half.

The ABA’s final resolution and report does not embrace any individual state’s single efforts. Rather, it encourages states to continue these endeavors and “ensure that changes are effective in increasing access to legal services and are in the interest of clients and the public.”

Key Provision
The amended resolution also added the following key provision, which was negotiated by Greenberg with the resolution’s proponents as a condition of NYSBA’s support: “Nothing in this resolution should be construed as recommending any changes to any of 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 subject.”

Rule 5.4 limits sharing of legal fees with nonlawyers as well as bars nonlawyer equity in law firms.

The end result was a resolution to which NYSBA proudly gives its “full-throated support,” Greenberg said.

“We are left with a resolution all of us must embrace,” said Greenberg. “Not as a debatable proposition but a simple fact – a fact that in America today, in New York and across the nation, access to justice is in crisis dimensions…”

ABA President Judy Perry Martinez told Bloomberg Law that attorneys need to work to come together on the access to justice issue.

“This is what lawyers do best. We have varying perspectives, but we listen to each other,” Martinez told Bloomberg Law. “This was a significant day for the ABA.”

(Click here to listen to President Greenberg’s remarks to the ABA House of Delegates from the 12:51 to 18:00 minute marks.)

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