OCBA UPDATE: An officer and a citizen

prev
next

Bryan Stevenson is one of the most inspirational people and speakers imaginable.1 In 2012 he spoke at an American Bar Association (ABA) event I attended. I was moved by his compassion and his vision. A key piece of his message is that while the arc of the moral universe may bend toward justice, people need to actively tug on it to make it so, and that often is not comfortable or easy.

Taking uncomfortable action is, well, uncomfortable. But really only at first. Because soon you are surrounded by others, perhaps unknown to you initially, and each of you are geometrically energized with the realization that together, with persistence, small goals, then larger goals, are within reach.

Lawyers more than any other profession rise to this challenge. Unlike any other profession, lawyers are ethically bound to serve the public and the judicial system as a whole.2 The vast majority of attorneys consistently practice this obligation within the confines of their daily work, vis-à-vis clients, the courts and opposing counsel. Others go further to address systemic issues in our justice system. Bryan Stevenson is one such lawyer, and he urges others to follow.

Most people might not think of our bar as particularly activist. It is certainly true that we rarely take up the torches and pitchforks, although recent events have seen many a brave OCBA member rise to the service of the public.3 But not all advocacy is strident, and not all bravery makes the front page. As a bar association, the OCBA is more often the quiet leader, providing resources for attorneys to assist with ills such as the scourge of human trafficking,4 promoting the rule of law through participation in Law Day and Patriot Week activities, and working within our own ranks to promote diversity.5 At the same time, OCBA leaders from the bench6 and bar7 have raised their voices, and our collective awareness, when injustice rears its head.

If you have a vague sense of wanting to do "something" but do not know what, the OCBA provides a way for you to channel that energy. The breadth and scope of programs offered is truly breathtaking. And we are always looking for fresh takes, fresh energy and do-ers to lead the way. Recently Kaitlin Brown of Maddin Hauser stepped up to help lead our re-energized diversity efforts at the bar. She is just one example of many of our lawyers doing great, selfless things.

The Rule of Law and Attorney Independence

How is it that a profession devotes so much time, energy and money to something that has nothing to do with their bottom line? While not in keeping with our cynical times, I submit that it is precisely because lawyers, before they ever practice, are taught that they are "an officer of the legal system and a public citizen," that this truth alloys to them, and that they rise to the challenge of that responsibility. That duty we all have, that construct, itself arises from the model of attorney independence and self-regulation. And that core concept which itself is the keystone to the rule of law in this country is under attack.

Attacks upon the independence of attorneys and judges goes back to the founding of the republic; it is an ever-present threat that requires constant opposition.8 As Justice Sandra Day O'Connor once said: "Judicial independence does not just happen all by itself. It is tremendously hard to create, and easier than most people imagine to destroy." And while defending the rule of law in the wake of such attacks is critical,9 it is equally important to appreciate that the rule of law depends just as much, if not more, on the independence of attorneys.

In the 1990s, there was a considerable attack on the concept of attorney independence by those promoting so-called MDPs multi-disciplinary practices that would permit attorneys and non-attorneys to practice together and share fees. This runs contrary to MRPC 5.4 as well as a core precept of our legal system the independence of attorneys. The push was led by an alliance of big-money players (accounting firms and private-equity-backed groups like LegalZoom), academics and some bar leaders. At the ABA, a ballyhooed task force report that would have greatly eroded the protections of MRPC 5.4 was rejected by the House of Delegates. The State Bar of Michigan set up committees and the bar journal ran a point/counterpoint article.10 Similar to what happened at the ABA, a report generated by a small group of people failed to convince the Representative Assembly and the push was dropped.

The Justice Gap Won't Be Solved by Gutting the Profession

Twenty years later, the same attack is being made, but with a new sales pitch. Whereas the MDP debate was built around the alleged desire of consumers to have one-stop-shops, the new push is based upon a very real fact the "justice gap" that recognizes lower-income people have legal needs but cannot afford a lawyer.11 This is a longstanding problem12 that has gotten worse as income inequality grew over the past decades while funding for legal services has been slashed.13 What is relatively new is the suggestion that an answer to this problem lies in the erosion of attorney independence.

Once again, just as with MDPs, powerful forces backed by big-money players, as well as vocal segments of academia and some bar leaders, are pushing for change. There is a plethora of academic writings being produced, and bar associations in California, New York, Utah, Arizona and, yes, Michigan14 are looking at facets of the issue.15 In California, draft proposals that would have decimated attorney independence met with overwhelming opposition when exposed to a public hearing.16 But the forces pushing for these changes are powerful and one wonders how long the status quo holds. Recently, even U.S. Supreme Court Justice Neil Gorsuch got in on the action, advocating for the unauthorized practice of law so long as the task was "routine" although "arguably legal."17 And in late August 2019, the Utah Supreme Court agreed to move forward with an exploratory pilot program wherein non-attorney providers of legal services would be regulated by a new regulatory body.18

When something like this is in the wind, ask yourself: who stands to profit? The U.S. legal market is approximately $300 billion per year,19 and non-lawyers want in.20 In the late 1990s, their argument was that consumer choice demanded MDPs, although there was no real evidence to support that claim. Now, their argument is that largely lower-income individuals have unmet legal needs that the (non-lawyer) market would magically remedy, if only they could engage in the unauthorized practice of law. What evidence is there for this claim? The recent darling of the "innovation" crowd is Professor William Henderson, who was paid to create a study for the California Bar Association. Henderson notes that massive increases in the cost of college tuition and healthcare have caused consumers to de-prioritize spending on legal services. He then notes that many litigants in state court are unrepresented. He pastes together several other data points to conclude that there is "ample evidence that ordinary citizens increasingly cannot afford traditional one-on-one consultative legal services." From this, he jumps to the conclusion that the answer lies in deregulation of the practice of law, while recognizing that this would be an unprecedented and empirically unjustified departure from our current system. In other words, it is a Hail Mary.

The justice gap in America is real. Having been created and exacerbated by the market, what evidence is there that the market will somehow magically solve it? Indeed, there is an inner conflict in the argument people who have no money to pay for attorneys will nevertheless somehow have money to pay for a non-attorney solution. This, so far, has not been the experience in the U.K. When the U.K. deregulated law firms in 2007, it took several years for non-lawyer-owned firms to come on line. But a comprehensive study in 2015 concluded that "the access benefits so far have been questionable and some of these [non-lawyer entities] have also created the possibility for new types of conflict of interest and helped actors bypass professional regulations."21 Not all across the pond think it was such a great idea22 and there is scant evidence of it closing the justice gap.23 And here in the U.S., not everyone is buying the questionable logic of the "innovation" crowd.24 Even the California bar's report concluded there is "little or no concrete evidence that this proposal would increase access to justice."

Henderson's report is more a piece of advocacy than one of social science. His use of selective data, unsupported faith in the market, his lack of credit to many lawyers who are plenty entrepreneurial, and his complete disregard for how legal ethics protects the public, provide a lot of fodder for a skeptic. At least one academic concluded that the existing literature "has been almost entirely speculative" and that "the access benefits of non-lawyer ownership are generally oversold."25

We All Need to Roll Up Our Sleeves

But the justice gap is real. Is the only solution a sea change to legal ethics and the rule of law? The Michigan Supreme Court and the state bar have a proven record of adopting innovative solutions to problems within our established legal regulatory scheme. In 2017, the bar and Court worked together to enable limited-scope representation, specifically designed to address the justice gap.26 Online solutions are gaining traction across the country.27 (For example, Washtenaw County, among others, adopted an online traffic ticket resolution system.28) Recently, the Supreme Court kicked off the "MI-Resolve" online mediation program, aimed squarely at those most affected by the justice gap.29 Some solutions, like local law libraries, help ameliorate the issue, which the Oakland County Bar Foundation traditionally supported.30 Yes, these types of solutions still need capital and personnel, and they still only work for certain types of legal matters.31 But solutions are out there that do not require erosion of the bedrock principles of attorney ethics and protection of the public.

"A dedicated bench and a militant bar are the natural leaders" to preserving our liberties, Chief Justice Earl Warren remarked. "Without an independent judiciary there can be no freedom."Attacks on the independence of our judiciary and attacks on our regulatory regime are not separate. They both exist precisely because lawyers and their ethics stand in the way of courser forces that are less committed to justice. In this light, the contributions of the OCBA and its members continue this proud history in defense of our judicial system. We can always use more help when you're ready to get uncomfortable.

--------

Footnotes

1Exhibit A: https://www.ted.com/talks/bryan_stevenson_we_need_to_talk_about_an_injustice?language=en.

2The preamble of the Model Rules of Professional Conduct, which is incorporated into the comment for Rule 1.0 of the Michigan Rules of Professional Conduct, begins: "A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice."

3https://www.freep.com/story/news/local/michigan/2018/09/22/lawyer-defended-iraqi-immigrants-cancer-secret/1382942002/.

4In October 2019, the OCBA, the State Bar of Michigan, the Joseph Project, Lakeshore Legal Aid, and D. Augustus Straker Bar Association partnered to offer free training for the growing network of legal first responders committed to helping trafficking survivors in Michigan. The training was provided by attorneys and other subject-matter experts with extensive experience providing services to human trafficking survivors and in-depth knowledge of legal issues that affect them. Attorneys who view the training must agree to accept a human trafficking referral on a pro bono basis within one year of training. Go to alawyerhelps.org, and under the "Links of Interest" subhead, click "Human Trafficking Training-Video Coming Soon."

5See www.ocba.org/DICommittee.

6http://legalnews.com/washtenaw/1451654.

7https://altiorlaw.com/michigan-bar-journal-october-2018-presidents-page-jennifer-m-grieco/.

8http://www.abajournal.com/news/article/protecting_judicial_independence_from_both_internal_and_external_threats.

9The ABA has a good general "rule of law" resource page: https://www.americanbar.org/groups/public_education/resources/rule-of-law/?utm_medium=social&utm_source=email&utm_campaign=dcruleoflaw.

10https://heinonline.org/HOL/Page?public=true&handle=hein.barjournals/micbj0079&div=17&start_page=64&collection=michbar&set_as_cursor=3&men_tab=srchresults.

11lsc.gov/media-center/publications/2017-justice-gap-report. For a review of the justice gap in Michigan, see https://www.michbar.org/file/programs/atj/pdfs/JusticeGap.pdf.

12See, e.g., https://harvardmagazine.com/2017/11/unequal-justice-america, which documents this problem going back at least a century.

13nytimes.com/2018/08/31/business/rising-inequality-widened-justice-gap.html.

14Our past president, Jennifer Grieco, wrote two excellent articles on the issues during her term as state bar president. http://www.michbar.org/file/barjournal/article/documents/pdf4article3731.pdf, http://www.michbar.org/file/barjournal/article/documents/pdf4article3755.pdf.

15A similar proposal from an ethics committee in North Carolina met stiff opposition and was sent back to committee, from which it did not resurface.

16https://www.law.com/therecorder/2019/09/23/california-lawyers-slam-bar-proposals-for-fee-sharing-non-attorney-ownership/.

17https://biglawbusiness.com/gorsuch-sides-with-access-to-justice-reformers-in-new-book.

18https://www.lawsitesblog.com/2019/08/utah-supreme-court-votes-to-approve-pilot-allowing-non-traditional-legal-services.html. The underlying report may be found here: https://www.utahbar.org/wp-content/uploads/2019/08/FINAL-Task-Force-Report.pdf. This new regulatory body would be initially funded by unspecified "grants." A somewhat similar concept of a new regulatory body governing non-attorneys in the marketplace (in this case, for-profit attorney matching services) was proposed in Illinois, although it was sent back to committee in 2018 and has not yet resurfaced. https://www.iardc.org/Matching_Services_Study_Release_for_Comments.pdf.

19http://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000022382.pdf.

20As one advocate for deregulation candidly admitted: "The for-profit tech people want to be able to sell us efficient TurboTax-like ways to do all kinds of stuff we can't do now, and they're prevented from doing that. That's not a technological problem, that's a regulatory problem." http://www.legalexecutiveinstitute.com/legal-tech-persistent-barriers/.

21https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2487878.

22https://www.ibanet.org/Document/Default.aspx?DocumentUid=305D93FF-6742-4583-8065-451FB53C68E1.

23https://www.theguardian.com/society/2019/mar/27/justice-gap-towns-no-access-to-legal-aid-wales-england.

24http://www.abajournal.com/lawscribbler/article/access_to_justice_gap_its_the_economy_stupid ("Time and again, the proposed solutions to close the gap whether loans, technology, professional rule changes, process and business model improvements are missing the larger point. The access-to-justice gap doesn't exist because of absence of loans or the lack of technology or the intractable billable hour. It exists and continues to grow because the cost of life in America has increased dramatically while wages for most Americans have been stagnant or even falling for decades."); https://www.americanbar.org/news/abanews/publications/youraba/2019/october-2019/there-are-other-ways/.

25https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2487878.

26https://www.michbar.org/pmrc/limited-scope.

27https://www.ncsc.org/~/media/Files/PDF/About%20Us/Committees/JTC/JTC%20Resource%20Bulletins/2017-12-18%20ODR%20for%20courts%20v2%20final.ashx.

28https://www.courtinnovations.com/mid14a.

29https://courts.michigan.gov/News-Events/press_releases/Documents/Statewide%20Media%20Release%20ODR.pdf.

30https://abovethelaw.com/2018/07/3-thoughts-about-closing-the-justice-gap/.

31A good recent review: http://www.legalexecutiveinstitute.com/legal-tech-persistent-barriers/.

--------

Daniel D. Quick, of Dickinson Wright PLLC, is the 87th president of the Oakland County Bar Association.

Published: Wed, Feb 12, 2020