CBA Nov.-Dec. 2020

business models, giving both the profes- sionals and their clients a range of options to connect to the services they need and creating better functioning consumer markets. Standard Objections Debunked • We are protecting the public by preserving the current regulatory structure. There is zero proof that regulatory reform has led to increased harm to the public. • We are protecting the professional indepen- dence of lawyers. While this is a laudable goal, the Rules already acknowledge lawyers can, and do, manage a host of challenges to their independent judg- ment when they are retained by insurance companies to represent other clients, are employed as in-house counsel for cor- porations, or have litigation financed by others, to name just a few common situa- tions. It takes a dim view of lawyer ethics to suggest that lawyers can handle all of that but somehow cannot collaborate with other business entities to serve the consumer market without checking their professional independence at the door. • There is no proof that regulatory reform improves access to justice. We cannot prove something that has not been allowed to happen, but in those jurisdictions that have enabled new approaches to take flight, those approaches are showing real results increasing innovation and access. Theoretical Concerns v. Increasingly Painful Reality The above examples are just some of the concerns that opponents of progress raise for what theoretically could go wrong. As the doubters raise these theoretical concerns about what could but never has happened in jurisdictions that have pursued similar regulatory reforms, the reality of what actually is happening for legal consumers and the lawyers trying to serve them gets tougher by the day. The reflexive opponents of change often find comfort in the traditional process for amending the Rules of Professional Conduct, which is slow and incremental. When we are talking about long settled core principles of our profession, like con- flicts of interest, there is something to be

said for this approach. However, when we are talking about regulating the business of law for a whole different era, incremental change will not cut it. We need to step up and try a new approach. Regulating for the Real World Instead of regulating for the 1980s with incremental changes, what the world needs now is a fresh look at the Rules of Professional Conduct. We need to regulate for the reality of the 2020s through the lens of the Court’s published Regulatory Objectives. Instead of leaving consumers to find their own way in a confusing legal world, we can start by freeing up lawyers to better connect to the communities they serve and to use proven business practices to give people affordable access to a range of legal solutions. Instead of limiting lawyers to the one- size-fits-all law firmmodel, we should join other professions by allowing lawyers to use a range of business models to meet their and their clients’ needs. Instead of trying to shut out tech- nology-based products that consumers clearly want and already are using without going through lawyers, we should ensure these tools are quality legal solutions and empower lawyers to get involved in provid- ing technology based services. Instead of drawing bright yet inconsis- tent lines on issues like splitting fees, we should have one set of guidelines for law- yers to work with other entities that applies across the board so that lawyers can access the other business and technology services they need to succeed in today’s world. This is what a reality-based approach looks like. We can do all this and more while fulfilling our core regulatory objec- tives, but it requires a new way of looking at regulating the business of law. The CBA/ CBFTask Force on the Sustainable Practice of Law & Innovation has done just that, providing a comprehensive roadmap and series of recommendations. To be clear, improving the sorry state of access to justice for the public is a multi- tiered problem, and regulatory reform is just one part of the solution. It is not a replacement for pro bono and proper fund-

ing for legal aid services. Nor is it a replace- ment for the major court reform necessary to modernize and streamline access to the court process. However, regulatory reform is absolutely essential to closing the huge gap in the middle of the legal market. Who DoWeWant to Be? Do we want to be the lawyers who fight to protect a failed status quo? To just sit on the sidelines because our practices are not directly impacted as access to legal help gets more out of reach for everyone else? Or do we want to be the lawyers who take our responsibilities as trustees of the system to heart, own the growing market failure in the system, and lead the way toward real solutions? We have an opportunity right now to make law better for all concerned, and we have no time to waste. I could not be more proud of the work of the Task Force and the ongoing leadership of the CBA and CBF on these issues, and I hope you will join in supporting the efforts to make that case while we still can. This article was adapted from one of Bob’s recent “Bobservations” posts on the CBF blog, which you can follow at chicagobarfounda- tion.org. The CBA and CBF officially launched the Task Force on the Sustainable Practice of Law & Innovation in October 2019 to help shape a better future for our profession, the public, and the justice system.TheTaskForcebrought together a broad group of distinguished local and national stakeholders. Over a nine- month period, the Task Force explored, researched, and analyzed all possible solutions to the currentmarket failure in the consumer and small business legal services market, ultimately proposing a comprehensive series of 11 recom- mendations for regulatory reform in Illinois in its final report to the Illinois Supreme Court on October 2, 2020. You can learn more about the Task Force and view the final task force report and recommendations on the CBF website, chicagobarfoundation.org.

CBA RECORD 17