Responsive Law recently submitted comments to the American Bar Association regarding proposed rule changes to the Model Rules of Professional Conduct governing lawyer advertising and solicitation. Lawyer advertising is one of the most common ways that people find out about where they can get legal help. Restrictions on truthful advertising not only hinder the lawyer's ability to advertise her services, but also the consumer's ability to find the right lawyer for her legal matter. Lawyers have the right to convey truthful information and consumers have the right to make an informed decision among different options for legal services.
The current rules of professional conduct maintain an antiquated mindset under which advertising is heavily restricted due to being seen as undignified. While a Victorian era gentleman could find a good lawyer through recommendations from family members or friends from the country club, the modern consumer relies on advertising—especially online—to find professional services. Despite repeated court rulings that lawyers are free to advertise like any other profession, the ABA's Model Rules (followed by nearly all states) keep them shackled with unnecessary restrictions that serve to protect this antiquated business model rather than to protect consumers. This view of advertising as some type of "tasteless" activity leads to a society of uninformed consumers. If this type of pressure on lawyers continues, then the legal profession will never see change and consumers will always be left out of the equation.
A recent research study by Rebecca Sandefur (a member of our policy advisory board) concluded that most Americans are unaware when their problems have a legal component and wouldn't know how to find a lawyer even if they thought one would help them. Under the current rules, lawyers end up providing less information to consumers due to fear of punishment for running afoul of overly restrictive and unnecessarily technical restrictions.
Fortunately, the proposed amendments may indicate a shift in the bar's thinking. The amendments would streamline the rules to focus more on the truthfulness of lawyer advertising and solicitation and less on the form that such advertising takes. Responsive Law's comments to the ABA support these proposals in the hope that they will move the legal profession out of the Victorian-era and into the era of technology, where consumers can more easily access information about lawyers at the touch of a button.
You can find Responsive Law's testimony here
Angel Gutierrez is a Responsive Law intern
The ability to sign electronically is a convenient process allowing people to sign documents or confirm purchases from the comfort of their homes. However, the use of electronic signatures has not yet been applied to the process of estate planning. The 2016 Gallup Poll determined that the percentage of Americans with a will was only 45%, leaving the other 55% of the U.S. population with no record of their wishes upon their death. Responsive Law recently released a statement stating its support for laws that would allow for greater use of electronic signatures in estate planning.
In its statement, Responsive Law noted that “there is undoubtedly a segment of this population that is inhibited from preparing a will because of the need to have a physical signature on the document.” Responsive Law’s statement also recognizes that electronic signatures would increase the ability to create wills due to the process becoming more accessible and affordable to the public. In addition, cutting traveling and mailing costs out of estate planning could further simplify the process of getting a will, making it more likely that Americans would do so.
Several state legislatures are considering bills that would permit electronic signatures in estate planning. Florida’s SB 206, New Hampshire’s SB 40, Arizona’s SB 1298, and Indiana’s HB 1107 would all provide guidance on allowing the convenience of e-signatures while ensuring their validity.
Planning for the future after death can be harrowing for most, but it is also an important step. Responsive Law advocates for any process that can make this step easier for those who partake in it. E-signatures can greatly benefit the 55% of Americans who do not yet have a will, and Responsive Law believes that it is time to make that change a reality.
Angel Gutierrez is a Responsive Law intern.
Laura Snyder's new book, "Democratizing Legal Services: Obstacles and Opportunities," provides a comprehensive analysis of international trends and developments in the regulation of legal service providers.
Aided by dozens of detailed interviews with both traditional and nontraditional providers of legal and quasi-legal services, Snyder explores a developing market through lenses that are both specific enough to create a multi-dimensional story and broad enough to give readers a sense of the issue's global scope.
Her refreshingly frank and pragmatic tone leaves one laughing aloud at the absurdity of some obsolete regulatory schemes while simultaneously cringing at the same. Similarly, her inclusion of personal stories and the experiences of individuals—both consumers and providers of legal services—presents the implications of the changing market in an accessible manner that never loses sight of the immediate and essential impact that legal regulatory regimes have on human lives.
In an era when innovation and technology allow a constantly shifting legal environment, Snyder examines the arguments both against and in favor of the growing trend toward relaxed regulation of legal service providers. Organized primarily as a collation of the experiences and impressions of providers and consumers in Australia, Canada, the United Kingdom, and the United States, Democratizing Legal Services artfully treads the thin line between presenting a collection of interviews and offering a fact-based analysis of various regulatory regimes.
You can find the online directory of supplemental materials for Snyder's book here.
Lynn Bechtol is a Responsive Law Legal Fellow.
In a disappointing move for proponents of public oversight of the bar, on November 17 the California Supreme Court authorized its State Bar Association to collect interim dues from its members for 2017. Responsive Law testified on this issue to the California Supreme Court, urging it to tie any such authorization to a requirement that the State Bar pursue reform of its governance structures.
The California Supreme Court itself had earlier mandated that the State Bar of California act to segregate its attorney discipline and trade organization functions, reacting to a recent US Supreme Court case holding that professional organizations may not use their regulatory functions to stifle marketplace competition. Despite this mandate, the Special Regulatory Assessment requested by the Bar made no effort to address shortcomings in the Bar's current governance system.
"The California Supreme Court's decision to authorize the assessment even in the absence of reform is an unfortunate defeat for consumers of legal services, who need reform to make the judicial system more responsive and accountable to the interests of the public," stated Responsive Law Executive Director Tom Gordon. "In California and across the nation, state bars need to adapt their practices both to serve the public and to conform with the US Supreme Court's standards for professional regulatory organizations."
Lynn Bechtol is a Responsive Law Legal Fellow.
Responsive Law testified this week at a District of Columbia Council hearing regarding a proposed bill to expand funds for legal service providers representing low-income DC tenants in housing matters. Responsive Law supports the bill's spirit and objectives, but we expressed concerns that the limits imposed in the bill's text will stifle innovation in the provision of types of legal services available to the public.
The bill's aspirational goals are noble and sorely needed – studies indicate that only 3% of tenants in DC Housing Courts have access to counsel, and this shortcoming has extreme and far-reaching consequences for tens of thousands of Washingtonians. Responsive Law wholeheartedly supports any legislative attempt to increase the accessibility of legal assistance and representation, particularly for low-income individuals and families.
However, both the bill itself and the other testifying witnesses failed to address the reality that legal needs come in a wide range of forms, only some of which necessitate full and formal representation by a Bar-certified attorney. The bill's text limits groups eligible to receive funding to particular types of nonprofits and law school clinics – eliminating the possibility of funding for novel approaches by other organizations.
Of the 29 witnesses who testified before the Council, only Responsive Law addressed the importance of innovation in the legal services market. Every other witness—most of whom represented nonprofits and clinics that would see increased funding if the bill is passed—focused their testimony on the scope of the problem and the good works done by their organizations, specifically by lawyers. Without doubt, lawyers provide invaluable assistance in legal housing matters. However, a number of jurisdictions across the country now offer alternatives to traditional representation, including New York City's Navigator Program and Washington State's LLLT Program.
Furthermore, as Responsive Law Board Member Fritz Mulhauser testified, in even the most halcyon vision of the future legal services market, "lawyers will remain a scarce good." He raised the uncontroverted fact that, if the proposed bill is given a (wildly optimistic) budget of "$1-2 million per year," such a budget could "sustain at most a few dozen new attorneys." Given the scope of the problem, this will certainly be insufficient. It is therefore imperative that legislation addressing this issue both encourage creativity by service providers and leave room for previously unimagined approaches.
You can read the full text of Responsive Law's testimony to the DC City Council on this proposed legislation here.
UPDATED, 11/03/16: In response to the bill's lackluster approach to innovation in the provision of legal services, on November 3, 2016 Responsive Law submitted supplementary testimony regarding the bill. This summplementary testimony suggests specific proposed amendments that will address the bill's shortcomings through two types of significant revisions.
First, the amendments proposed by Responsive Law will expand the class of providers eligible for funding to allow innovative approaches by any group or provider capable of offering "effective assistance" - not just by lawyers and law school clinics. By opening the the door to a wider range of applicants representing a wider range of approaches, the amended bill would be better suited to meet the needs of a wider range of individuals.
Second, the amendments would increase the program's capacity and obligation to learn from the variations on effective assistance permitted under the bill. Given the extreme and ongoing shortage of legal aid available to indigent communities, only continued study and innovation will enable the bill to fulfill its goal of improving access to justice among low-income Washingtonians.
You can read the supplemental testimony submitted by Responsive Law here.
Lynn Bechtol is a Responsive Law Legal Fellow.