On Monday, Feb. 8, 2016, the ABA House of Delegates adopted a revised and amended version of the Regulatory Objectives Resolution. The original proposal is here. The language that was added stated:
FURTHER RESOLVED, that nothing contained in this Resolution abrogates in any manner existing ABA policy prohibiting non lawyer ownership of law firms or the core values adopted by the House of Delegates in Resolution 10F, adopted on July 11, 2000.
In my view, the resolution always was about encouraging jurisdictions to think about “why” they regulate and what they are trying to accomplish, not “what is regulated.” The Resolution “urges that each state’s highest court, and those of each territory and tribe, be guided by the ABA Model Regulatory Objectives for the Provision of Legal Services when they assess [regulatory issues].” I hope that each U.S. jurisdiction will now decide to adopt its own regulatory objectives (and will think about whether it wants to use the ABA’s model objectives verbatim or adapt a variation such as those recommended here, those set forth in this appendix, or those adopted in 2014 in Nova Scotia.)
The ABA Commission on the Future of Legal Services has issued its final Resolution & Report: Regulatory Objectives. This Resolution is scheduled for a vote at the February 2016 San Diego ABA Midyear Meeting. The draft objectives can provide the basis for a useful discussion in Chapters 2 and 9 regarding the purpose of regulation. (The ABA/BNA Lawyers’ Manual article about these regulatory objectives is available here.)
Full disclosure: I am on record as supporting regulatory objectives. As I explained in my Oct. 30, 2015 comment letter, I believe that regardless of what one thinks about recent market and regulatory developments, it is useful to have regulatory objectives:
My final comment is that it is important for the Commission and ABA members not to allow controversies about regulatory developments in the United States or elsewhere to derail the discussion about Model Regulatory Objectives. Many of the recent lawyer regulatory developments have been quite controversial. As I have noted in several articles, one way to think about both market and lawyer regulation developments is that they present issues regarding the “who-what-when-where-why-and-how” of lawyer regulation. For example, the North Carolina Dental Board case and the 2007 UK Legal Services Act raise issues about who it is that should regulate lawyers; LLLT, entity regulation, and ABS developments raise issues about what it is that should be regulated; the UK’s outcomes focused regulation raises questions about how regulation should occur. While these who-what-when-where-why-and-how issues have become intertwined in particular jurisdictions, it is important for U.S. jurisdictions to recognize that these issues are separable.
I believe that it is exceedingly important for a jurisdiction to ask itself the “why” question – why does the jurisdiction regulate lawyers and what it is trying to accomplish? I don’t think that asking the question of why a jurisdiction regulates presupposes a particular answer to one of the controversial “who-what-when-where-or-how” lawyer regulation issues. Moreover, failing to ask the “why do we regulate?” question doesn’t mean that the difficult issues are going to go away. Whether one likes it or not, there are market and regulatory developments in the United States and elsewhere that will be cited during regulatory debates. If a regulator can say what it is trying to achieve, its response to a particular issue – whatever that response is – should be more thoughtful and should have more credibility. It seems to me that this is in everyone’s interest.