How to Regulate Legal Services to Promote Access, Innovation, and the Quality of Lawyering
Gillian K. Hadfield and Deborah L. Rhode
Volume 67, Issue 5, 1191-224
Scholars and critics have for decades advocated change in the professional regulation of legal services markets in order to solve the ever-widening gap in access to justice. One of the central obstacles to change has been concern about the impact of opening legal markets to new practitioners and business models on central professional values such as competence, loyalty, and independence. This Article argues that good regulatory solutions are available to ensure that more open and flexible professional models—ones that allow the practice of law by alternative providers and business structures—deliver high quality, lower cost, greater innovation, and more access to those currently excluded from our justice systems. Part I explores the rationale for regulating the legal services market, and argues that oversight structures should be more responsive to differences in the risks that consumers face in various legal contexts. Part II surveys regulatory options: prescriptive, performance based, management based, and competitive or meta-regulation. Part III reviews the promising strategies that the United Kingdom has recently pioneered to promote access, innovation, and quality. Part IV analyzes regulatory options for the United States and the applicability of U.K. approaches in this country. Attention also focuses on the contributions and limitations of Washington’s recent program to recognize limited license legal technicians. We conclude with proposals for more effective national regulatory models.