the future of legal services in oregon

OSB Futures Task Force

Executive Summary | June 2017
 The relentless growth of technology and
the effects of globalization are upending the
legal services market, feeding innovation,
of Legal Services in Oregon

exposing inefficiencies, and presenting

opportunities for growth.

Consumers are voting with their wallets.

The alternative legal services market has
quickly become a multibillion dollar industry.

Oregon’s access-to-justice gap disproportionately

affects the most vulnerable among us.

Lawyers and nonlawyer entrepreneurs see the

legal market as ripe for innovation.

OSB Futures Task Force, 2017

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 “It will not do for Bar members to stand still or to rage against the
tide as the world around us evolves.”
OSB Advertising Task Force Report, 2009

I. Background

The legal services market has entered a period of intense disruption. Technological advances
are transforming how we deliver legal services, resolve legal disputes, and engage in legal
learning. Consumers of legal services—including sophisticated corporations1 as well as individual
clients—are demanding more for less and are apt to employ self-help rather than to hire a
professional.

Many lawyers are so accustomed to thinking of the law as a “full service” profession—
where a client with an incipient legal issue engages a lawyer or law firm to provide a full
complement of legal services until the “matter” is concluded—that it is difficult to imagine
legal services being provided any other way. But they are. The future is here. Oregonians are
using websites not merely to gather information about lawyers, but to actually obtain legal
advice. Services traditionally provided in person-to-person interactions between lawyers and
clients are now being offered by online providers such as LegalZoom and Avvo.2 Customized
legal forms, short telephonic consultations, and advice via chat are all available at the touch of
a button. Consumers are bypassing the traditional full-service lawyer-client relationship in favor
of “unbundled” legal services—limited-scope legal services that enable consumers to pick and
choose the services or tasks for which they are willing to pay. Or, they are bypassing the lawyer-
client relationship altogether and using “intelligent” online software to create their own wills,
trusts, and other “routine” legal documents that they believe are sufficient to meet their needs.

Consumers are voting with their wallets. The alternative legal services market has quickly
become a multibillion dollar industry. And why not? Consumers naturally want to resolve their
legal issues efficiently and cost-effectively, as they do any other problem. Commoditization
of services and the instant availability of information at the click of a mouse now set their
expectations; they demand easy access to qualified lawyers and legal resources as well as

Sandefur, Rebecca. Accessing Justice in the Contemporary USA: Findings from the Community Needs and Services Study.
University of Illinois at Urbana-Champaign: American Bar Foundation, August 8, 2014.

OSB Futures Task Force | Executive Summary | 3

 transparent, competitive pricing. And it is more tempting to simply not hire a lawyer, because the
Internet’s infinite amount of knowledge on any subject makes a do-it-yourself approach seem
feasible for many legal matters.

Against this backdrop, one might think that the public is finding it easier than ever to access
legal services. It is startling, therefore, to learn that the increased availability of information about
the law and legal services has done nothing to reduce the access-to-justice gap. The American Bar
Association Commission on the Future of Legal Services recently found that “[d]espite sustained
efforts to expand the public’s access to legal services [over the past century], significant unmet
needs persist” and that “[m]ost people living in poverty, and the majority of moderate-income
individuals, do not receive the legal help they need.”3 Specific findings from the Commission
include:

• As of the last census, 63 million people, or

Low-income Americans one-fifth of the population, met the financial
requirements for legal aid, yet funding for the
receive inadequate or no Legal Services Corporation (the primary vehicle for
of Legal Services in Oregon

federal legal aid funding) is inadequate. “[I]n some

professional legal help for jurisdictions, more than eighty percent of litigants

86% of the civil legal in poverty are unrepresented in matters involving

basic life needs, such as evictions, mortgage
problems they face in a foreclosures, child custody disputes, child support
proceedings, and debt collection cases.”4
given year.
• Access to justice is not just a problem for the
Legal Services Corporation, poor. One study showed that “well over 100
The Justice Gap, 2017
million Americans [are] living with civil justice
problems, many involving what the American
Bar Association has termed ‘basic human needs,’” “including matters related to shelter,
sustenance, safety, health, and child custody.”5

• Although financial cost is the most often cited reason for not seeking legal services,6
awareness may play an even larger role. The study found that “[i]ndividuals of all income
levels often do not recognize when they have a legal need, and even when they do, they
frequently do not seek legal assistance.”7 And when financial cost is an issue, it is not
only direct costs “but also indirect economic costs, such as time away from work or the
difficulty of making special arrangements for childcare.”8

• Pro bono and “low bono” efforts are insufficient to meet the needs of low- and moderate-
income Americans. “U.S. lawyers would have to increase their pro bono efforts ... to over
nine hundred hours each to provide some measure of assistance to all households with
legal needs.”9 Nor have other programs across the country designed to offer assistance to
this population significantly narrowed the access-to-justice gap.10

Within this context, new lawyers remain un- and underemployed.11 Total student debt
burdens now average in excess of $140,00012—challenging new lawyers’ ability to sustain
traditional law practices that might address some of the unmet legal need—while legal education
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remains essentially unchanged

The effect of the access-to-justice gap on the court system is staggering. A 2015 study by
the National Center for State Courts found that more than 75 percent of civil cases featured at
least one self-represented party.13 According to Oregon Judicial Department data from 2016,
approximately 80 percent of family court cases involved at least one self-represented litigant. In

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 Self-Represented Parties in Oregon
94%
91%
85%
80% 78% 80%

Dissolution Custody & Protective Order Protective Order Landlord/Tenant Total Civil ProSe
Support FAPA Elder Abuse Residential

Oregon Judicial Department, Oregon Circuit Courts Self-Represented Parties (2016).

residential eviction proceedings, it is rare to see a lawyer anywhere—only about 15 percent of

residential eviction proceedings involve lawyers. Instead, landlords are commonly represented
by property managers, and tenants represent themselves.

Moreover, data shows that Oregon’s access-to-justice gap disproportionately affects the
most vulnerable among us. As reported at the 2016 Oregon Access to Justice Forum, people of
color, homeless people, domestic violence survivors, physically disabled people, and the elderly
have greater-than-average civil legal needs but are still woefully underserved. The Campaign for
Equal Justice estimates the combined legal aid providers in Oregon can meet only 15 percent
of the total civil legal needs of Oregon’s poor. According to a survey, the biggest reason (17
percent) why low-income Oregonians did not seek legal aid was the belief that nothing could
be done about their legal problems. And, given the limited resources available, that may not be
wrong.

In short, three powerful forces are converging to disrupt the legal services market. First,
more people than ever need legal services and are not getting them. Second, people believe
that their legal needs should be capable of being served in ways different, and more cost-
effective, than the traditional model. Oregonians’ expectations are changing. Third, new
providers are stepping in to fill that void.

Lawyers and nonlawyer entrepreneurs see the legal market as ripe for innovation. Lawyers
are reaching out to solicit business through websites, blogs, and social media; increasingly
relying on online advertising and referral services to connect them with prospective clients; and
using web-based platforms to offer limited-scope consultations or services to clients who have
been referred to them by third parties. All the while, tech businesses, awash in venture capital,
have developed online service delivery models ranging from the most basic form providers to
sophisticated referral networks. Online services offer to draft a pleading,14 write a will,15 or apply
for an immigration visa,16 all from the comfort of a consumer’s living room or mobile device.

Indeed, innovation is necessary both to meet the consumer need and for lawyers to stay
competitive. The ABA Commission Report decried members of the legal profession for clinging
to outdated business models and resisting change. Specifically, the Commission found that

OSB Futures Task Force | Executive Summary | 5

 “[t]he traditional law practice business model constrains innovations that would provide greater
access to, and enhance the delivery of, legal services.”17 For example, the Commission recognized
the conflict of interest inherent in hourly billing, where efficiency in delivering legal services can
be rightfully seen as adverse to short-term revenue.18 In the long term, however, firms that have
taken a proactive approach to alternative fee arrangements have retained their profitability.19

The relentless growth of technology and the effects of globalization are upending the legal
services market, feeding innovation, exposing inefficiencies, and presenting opportunities for
growth. While market disruption and rapid change do not spell the end of lawyering, they do
demand an evolution in the manner and methods by which lawyers provide legal services, and
the way in which those services are regulated.

II. Creation of Oregon State Bar Futures Task Force

of Legal Services in Oregon

The legal profession is nothing if not conservative. Lawyers are schooled in precedent,
consistency, and risk avoidance. Yet, as noted in the ABA Futures Commission Report on the
Future of Legal Services, “The justice system is overdue for fresh thinking about formidable
challenges. The legal profession’s efforts to address those challenges have been hindered by
resistance to technological changes and other innovations.20

In April 2016, the OSB Board of Governors convened a Futures Task Force with the following
charge:
“Examine how the Oregon State Bar can best protect the public and support
lawyers’ professional development in the face of the rapid evolution of the
manner in which legal services are obtained and delivered. Such changes have
been spurred by the blurring of traditional jurisdictional borders, the introduction
of new models for regulating legal services and educating legal professionals,
dynamic public expectations about how to seek and obtain affordable legal
services, and technological innovations that expand the ability to offer legal
services in dramatically different and financially viable ways.”

The Board split the Futures Task Force into two committees: a Legal Innovations Committee,
focused on the tools and models required for a modern legal practice, and a Regulatory
Committee, focused on how to best regulate and protect the public in light of the changing legal
services market. The charges, findings, and recommendations of the two committees follows.

III. The Regulatory Committee

A. The Regulatory Committee Charge

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The Regulatory Committee was charged to examine new models for the delivery of legal
services (e.g., online delivery of legal services, online referral sources, paraprofessionals, and
alternative business structures) and make recommendations to the Board regarding the role
the Bar should play, if any, in regulating such delivery models. The Board requested a report
containing the following information:

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• A summary of what exists at present, both in terms of existing legal service delivery
models and regulatory structures for those models;

• A discussion of the consumer-protection and access-to-justice implications presented by

these models and regulatory structures;

• An analysis of the stakeholders involved, including (1) the vendors that have an interest
in exploring innovative ways to deliver legal services to consumers, (2) the lawyers
who are interested in utilizing these innovative service delivery models, and (3) the
regulatory entities that are responsible for ensuring adequate protection for consumers
in this quickly evolving legal services market;

• Specific recommendations for proactive steps OSB should take to address these new
models (e.g., should OSB propose amendments to the Oregon Rules of Professional
Conduct, the OSB Rules of Procedure, or state law); and

• A proposed strategic response in the face of unexpected action at the legislature or

elsewhere.

B . Findings of the Regulatory Committee

The Regulatory Committee recommendations are based on the following findings:

1. Oregonians need legal advice and legal services to successfully resolve problems and to
access the courts.

2. Consumers are increasingly unwilling or unable to engage traditional full-service legal

representation.

3. A significant number of self-represented litigants choose not to hire lawyers, even

though they could afford to do so.

4. Self-help resources are crucial and must be improved, even as we take steps to make
professional legal services more accessible.

5. Subsidized and free legal services, including legal aid and pro-bono representation, are a
key part of solving the access-to-justice gap, but they remain inadequate to meet all of
the civil legal needs of low-income Oregonians.

6. Despite the existence of numerous under- and unemployed lawyers, the supply of legal
talent is not being matched with the need.

7. Oregonians’ lack of access to legal advice and services leads to unfair outcomes,
enlarges the access-to-justice gap, and generates public distrust in the justice system.

8. For-profit online service providers are rapidly developing new models for delivering legal
services to meet consumer demand.

9. To fully serve the Bar’s mission of promoting respect for the rule of law, improving the
quality of legal services, and increasing access to justice, we must allow and encourage
the development of alternate models of legal service delivery to better meet the needs
of Oregonians.

OSB Futures Task Force | Executive Summary | 7

 C . Recommendations of the Regulatory Committee

Based on its findings, the Regulatory Committee makes three broad recommendations,
each with several subparts. The purpose of this summary is to identify and briefly describe each
recommendation. For a more complete explanation of the recommendations, readers should refer
to the accompanying workgroup reports, which have been approved by and reflect the views of the
Committee as a whole.

RECOMMENDATION 1:
IMPLEMENT LEGAL PARAPROFESSIONAL LICENSURE

Oregon should establish a program for licensure of paraprofessionals who would be authorized
to provide limited legal services, without attorney supervision, to self-represented litigants in (1)
family law and (2) landlord-tenant proceedings.
of Legal Services in Oregon

The accompanying report reviews and analyzes developments in other jurisdictions, particularly
Arizona, California, Colorado, Nevada, New York, Utah, Washington, and Ontario, Canada. We
reviewed a wide variety of materials on paralegal regulation and the problem of self-represented
litigants, considered arguments for and against licensing paraprofessionals, and discussed the
elements of a licensing program that would be appropriate for Oregon.

The most compelling argument for licensing paraprofessionals is that the Bar’s other efforts to
close the access-to-justice gap have continued to fall short. We must broaden the options available
for persons seeking to obtain legal services, while continuing to strive for full funding of legal aid
and championing pro bono representation by lawyers. By adopting a form of paraprofessional
licensing, Oregon will not be assuming the risk of being ahead of the pack. Instead, the workgroup
report shows that Oregon is well-placed to benefit from the experience, trial, and error of six
distinct paraprofessional programs.

Our proposal would allow limited practice by paraprofessionals in two of the highest-need
areas—family law and landlord-tenant—and only in limited types of proceedings where clients are
by and large unrepresented. Clients who need other kinds of legal help, have complex cases, or
desire representation in court for any reason will still need lawyers.

Contrary to the commonly held belief, we are convinced that licensing paraprofessionals in the
manner proposed would not undermine the employment of lawyers. First, the need for routine,
relatively straightforward family law and landlord-tenant representation is vast, and lawyers are
electing not to perform this high-volume, low-pay work. Second, data from existing programs
demonstrates that lawyers and licensed paraprofessionals may choose to work together because
they can provide tiered and complementary services based on the complexity of a client matter.
Given the significant underutilization of legal services, paraprofessionals may actually create on-
ramps to lawyer representation for consumers who do not realize they need legal services. Finally,
there is simply no evidence that when paraprofessionals are introduced into the legal market,
lawyers are harmed. For all of these reasons, the legal profession need not fear innovative service
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delivery models.

Given the inherent complexity of launching a paraprofessional licensing program, we

recommend the Board appoint an implementation committee to formulate a detailed
implementation plan for licensing paraprofessionals consistent with the recommendations in this
report.

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1.1 An applicant should be at least 18 years old and of good moral character. Attorneys
who are suspended, resign Form B, or are disbarred from practicing law should not be
eligible for a paraprofessional license.

1.2 An applicant should have an associate’s degree or higher and should graduate
from an ABA-approved or institutionally accredited paralegal studies program, including
approved coursework in the subject matter of the license. Highly experienced paralegals
and applicants with a J.D. degree should be exempt from the requirement to graduate from
a paralegal studies program.

1.3 Measures should be enacted to protect consumers who rely on newly licensed
paraprofessionals. The measures should require that applicants be 18 years old and of
good moral character and meet minimum education and experience requirements. The
measures should also require that licensees carry malpractice insurance, meet continuing
legal education requirements, and comply with professional rules of conduct like those
applicable to lawyers.

1.4 Applicants should have at least one year (1,500 hours) of substantive law-related
experience under the supervision of an attorney.

1.5 Licensees should be required to comply with professional rules of conduct

modeled after the rules for attorneys.

1.6 Licensees should be required to meet continuing legal education requirements.

1.7 To protect the public from confusion about a licensee’s limited scope of practice,
licensees should be required to use written agreements with mandatory disclosures.
Licensees also should be required to advise clients to seek legal advice from an attorney if
a licensee knows or reasonably should know that a client requires services outside of the
limited scope of practice.

1.8 Initially, licensees should be permitted to provide limited legal services to self-
represented litigants in family law and landlord-tenant cases. Inherently complex
proceedings in those subject areas should be excluded from the permissible scope of
practice.

1.9 Licensees should be able to select, prepare, file, and serve forms and other
documents in an approved proceeding; provide information and advice relating to the
proceeding; communicate and negotiate with another party; and provide emotional
and administrative support to the client in court. Licensees should be prohibited from
representing clients in depositions, in court, and in appeals.

1.10 Given the likely modest size of a paraprofessional licensing program, the high
cost of implementing a bar-like examination, and the sufficiency of the education and
experience requirements to ensure minimum competence, we do not recommend
requiring applicants to pass a licensing exam. If the Board of Governors thinks that an
exam should be required, we recommend requiring applicants to pass a national paralegal
certification exam.

1.11 To administer the program cost-effectively, we recommend integrating the

licensing program into the existing structure of the Bar, rather than creating a new
regulatory body.

OSB Futures Task Force | Executive Summary | 9

 RECOMMENDATION 2:
REVISE RULES OF PROFESSIONAL CONDUCT TO REMOVE BARRIERS TO INNOVATION

Alternative legal service delivery models, which harness technology to offer limited-scope
services to consumers in lieu of the traditional model of full-service legal practice, are here to stay.

The regulatory response to this development around the country has been mixed. Some
state bar associations have been very resistant to change, electing to double down on traditional
regulation methods through restrictive ethics opinions and reactive lawsuits. But these efforts
have not stemmed the tide of change. The lesson we draw from those experiences is that
resistance from the Bar will not lead Oregonians to passively accept the status quo; the future is
here. Leadership from the Bar is essential to ensure that, as the market for legal services evolves,
our profession retains its commitment to protecting the consumer. We believe that there are
opportunities to embrace new models of practice, leverage technological advances, and begin to
close the access-to-justice gap without compromising that historical commitment.
of Legal Services in Oregon

If the Bar is to stay true to its goals of protecting the public and seeking to increase and
improve access to justice, the Bar’s regulatory framework must be flexible enough to allow some
space for innovation and new ideas to grow. We recommend a short list of modest changes, which
will loosen restrictions on lawyer advertising and facilitate innovation by allowing more economic
partnership between lawyers and nonlawyers, particularly licensed paraprofessionals.

2.1 Amend current advertising rules to allow in-person or real-time electronic

solicitation, with limited exceptions. By shifting to an approach that focuses on preventing
harm to consumers, the Bar can encourage innovative outreach to Oregonians with
legal needs, while promoting increased protection of the most vulnerable. The proposed
amendments to the Oregon Rules of Professional Conduct would secure special protections
for prospective clients who are incapable of making the decision to hire a lawyer or have told
the lawyer they are not interested, or when the solicitation involves duress, harassment, or
coercion.

2.2 Amend current fee-sharing rules to allow fee sharing between lawyers and lawyer
referral services, with appropriate disclosure to clients. Currently, only Bar-sponsored or
nonprofit lawyer referral services are allowed to engage in fee-sharing with lawyers. Rather
than limit market participation by for-profit vendors, the Bar should amend the Oregon
Rules of Professional Conduct to allow fee sharing between all referral services and lawyers,
while requiring adequate price disclosure to clients and ensuring that Oregon clients are not
charged a clearly excessive legal fee.

2.3 Amend current fee-sharing and partnership rules to allow participation by licensed
paraprofessionals. If Oregon implements paraprofessional licensing, it should amend
the Oregon Rules of Professional Conduct to allow fee sharing and law firm partnership
among regulated legal professionals. Any rule should include safeguards to protect lawyers’
professional judgment. The Board should also direct the Legal Ethics Committee to consider
whether fee sharing or law firm partnership with other professionals who aid lawyers’
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provision of legal services (e.g., accountants, legal project managers, software designers)
could increase access to justice and improve service delivery.

2.4 Clarify that providing access to web-based intelligent software that allows
consumers to create custom legal documents is not the practice of law. Together with this
effort, seek opportunities for increased consumer protections for persons utilizing online
document creation software.

10 | OSB Futures Task Force | Executive Summary

RECOMMENDATION 3:
IMPROVE RESOURCES FOR SELF-NAVIGATORS

Numbers do not lie. In Oregon, and nationwide, more and more people in our legal system
are self-represented. Some self-represented litigants choose their path because they cannot
afford a lawyer; others simply believe a lawyer is not needed or will only make their legal issues
unduly complicated. While lawyers have a professional duty to continue to strive to fully fund
legal aid and provide pro bono representation to the indigent, some Oregonians will always
appear in court without a lawyer. Recognizing this fact, the Bar should seek to improve the
experience of self-navigators and should recognize this work as another method to narrow the
access-to-justice gap.

3.1 Coordinate and integrate key online resources utilized by self-navigators. Establish
a committee with representatives from the three stakeholder groups—the Oregon Judicial
Department (OJD), the Bar, and legal aid—to coordinate and collaborate on the information
available on their respective websites, including cross-links when appropriate.

3.2 Create self-help centers in every Oregon courthouse. The Oregon State Bar and
OJD should consider proposing or supporting the creation of self-help centers to assist self-
navigators, including the use of dedicated and trained court staff and volunteers. The goal
should be self-help centers in every court in Oregon.

3.3 Continue to make improvements to family law processes to facilitate access by

self-navigators. Implement the recommendations of OJD’s State Family Law Advisory
Committee regarding family law improvements to assist self-navigators. Seek to improve
training and ensure statewide consistency in training to family court facilitators.

3.4 Continue to make improvements to small-claims processes to facilitate access by

self-navigators. Implement the recommendations from the 2016 Access to Justice Forum
regarding small-claims process. Support changes to provide better courthouse signage,
instruction, and education for consumers.

3.5 Promote availability of unbundled legal services for self-navigators. Educate

lawyers about the advantages of providing unbundled services, including the existence of
new trial court rules. Provide materials on unbundled services to Oregon lawyers (through
the OSB website, the Bar Bulletin, local bars, specialty bars, and sections), including ethics
opinions, sample representation and fee agreements, and reminders about blank model
forms that can be printed from OJD’s website.

3.6 Develop and enhance resources available to self-navigators. While OSB, OJD, and
legal aid have made strides in providing information that is useful for self-navigators, we
must continue to improve existing resources and develop new tools.

OSB Futures Task Force | Executive Summary | 11

 IV. The Innovations Committee

A. The Innovations Committee Charge and Process

The Innovations Committee was charged with the study and evaluation of how OSB might
be involved in and contribute to new or existing programs or initiatives that serve the following
goals:

• Help lawyers establish, maintain, and grow sustainable practices that respond to
demonstrated low- and moderate-income community legal needs;

• Encourage exploration and use of innovative service delivery models that leverage
technology, unbundling, and alternative fee structures in order to provide more
affordable legal services;

• Develop lawyer business management, technology, and other practice skills; and
of Legal Services in Oregon

• Consider the viability of a legal incubator program.

The committee was asked to develop recommendations for OSB to advance promising
initiatives, either alone or in partnership with other entities, and to prioritize those
recommendations in light of relative projected costs, benefits, ongoing projects relevant to the
issues, and the capacity of OSB and other entities.

B . Findings of the Innovations Committee

The Innovations Committee agrees with the findings of the Regulatory Committee and also
finds that:

1. The profession in general, and the Bar in particular, would benefit from a substantially
stronger focus on the gathering, dissemination, and use of data-based evidence to
support and monitor progress toward its mission, values, and initiatives.

2. The Bar is underutilizing and undermarketing the Lawyer Referral Service, which is one
of its most successful programs over the past several years for connecting moderate-
means Oregonians with qualified legal help.

3. Law schools, the Bar, and other legal education providers are not doing enough to
prepare lawyers for the realities of modern legal practice or to encourage lawyers to
learn and adopt needed skills related to technology, project and practice management,
and business management.

C . Recommendations of the Innovations Committee

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RECOMMENDATION 4:
EMBRACE DATA-DRIVEN DECISIONMAKING

4.1 Adopt an official policy embracing data-driven decision making (DDDM).

As the Bar looks to invest time and resources in various initiatives, including the
recommendations of this Task Force, it is important that Bar leadership and the Board of

12 | OSB Futures Task Force | Executive Summary

 Governors emphasize the importance of using data to give context to—and measure
the effectiveness of—those initiatives. Specifically, we recommend grounding each and
every Bar initiative in the Bar’s mission, values, and functions, and establishing what
the business world refers to as SMART (Specific, Measurable, Achievable, Realistic,
Time-Based) goals around them. Additionally, to the extent that it is not already
consistently doing so, we recommend that the Bar establish a DDDM framework for
defining all new (and, where feasible, ongoing) initiatives.

4.2 Adopt a formal set of key performance indicators (KPIs) to monitor the
Bar’s values. Without measurement, the Bar’s values risk languishing as nice-to-
express sentiments instead of concrete commitments. The Board of Governors should
consider commissioning a special committee of the BOG to work with Bar leadership
in establishing an initial set of KPIs and determining a timeframe for periodically
evaluating them.

4.3 Adopt an open-data policy. We recommend that the Bar, and also, ideally, the
judiciary, adopt a formal open-data policy. While we do not go so far as to recommend
specific language for this policy, we recommend that the Board of Governors convene
a working group to propose a specific policy for the Bar, with an implementation target
of January 2018.

4.4 Provide a dedicated resource responsible for data collection, design, and
dissemination. Many successful businesses now have a chief data officer or chief
information officer in addition to, or sometimes as an expansion of, the role of chief
technical officer. As the availability of data increases and its potential uses proliferate,
and in order to enable the other recommendations of this subcommittee, we believe a
dedicated resource will be necessary.

RECOMMENDATION 5:
EXPAND THE LAWYER REFERRAL SERVICE AND MODEST MEANS PROGRAM

5.1 Set a goal to increase the number of inquiries to the Lawyer Referral Service
(LRS) and Modest Means Program (MMP); adequately fund the Referral and
Information Services department (RIS) to achieve the goal. The Oregon State Bar
should set a goal of increasing the number of inquiries to the LRS and MMP—and, by
extension, the corresponding number of referrals to Oregon lawyers—by 11 percent
per year for the next four years, and should adequately fund the RIS to achieve this
goal. While we do not offer an opinion on the specific amount of money that would
be necessary to reinvest in the programs in order to meet this 11 percent per annum
growth target, we recommend that the BOG request a proposal from the program’s
managers.

5.2 Develop a blueprint for a “Non-Family Law Facilitation Office” that can
become a certified OSB pro bono program housed within the circuit courts of
Oregon.

OSB Futures Task Force | Executive Summary | 13

 RECOMMENDATION 6:
ENHANCE PRACTICE MANAGEMENT RESOURCES

6.1 Develop a comprehensive training curriculum to encourage and enable

Oregon lawyers to adopt modern law practice management methods. Specifically,
we recommend that the OSB CLE Seminars Department—in cooperation with the PLF,
Bar Sections, Specialty Bars, or whomever else they deem appropriate—be tasked
with developing a comprehensive Modern Practice Management training curriculum
for Oregon lawyers comprised of no less than two hours of education in each of the
following areas: automation, outsourcing, and project management.

RECOMMENDATION 7:
of Legal Services in Oregon

REDUCE BARRIERS TO ACCESSIBILITY

7.1 Promote the provision of limited-scope representation. Specifically, we

recommend that the Bar set a target of increasing the number of lawyers providing
unbundled legal services in Oregon by 10 percent per year over the next four years. We
believe that such a goal will result in improved access to justice for Oregonians.

7.2 Promote the use of technology as a way to increase access to justice in lower
income and rural communities. In addition to training lawyers in private practice on the
effective use of technology to reach low-income and rural communities, the Bar should
encourage and support the courts in their efforts to provide more online, user-friendly,
resources for the public and opportunities to participate in court proceedings by video.

7.3 Make legal services more accessible in rural areas. In addition to leveraging
technology to create better access to legal services and the courts, we recommend hosting
two summits—one in eastern Oregon and one on the coast—to discuss barriers that are
germane to rural communities and share what programs, initiatives, or activities have
worked to improve access.

7.4 Promote efforts to improve the public perception of lawyers. The Bar should
expand public outreach that highlights lawyers as problem-solvers, community volunteers,
and integral to the rule of law.

RECOMMENDATION 8:
ESTABLISH A BAR-SPONSORED INCUBATOR/ACCELERATOR PROGRAM
FUTURE

We recommend that the OSB create a consortium-based incubator/accelerator program

that will serve Oregon’s low- and moderate-income populations—specifically, those individuals
whose income falls between 150 and 400 percent of the federal poverty level. The program
goals would be to provide legal services to those clients, to help new lawyers build sustainable
practices to meet client need, and to operate as a center for innovation dedicated to
identifying, developing, and testing innovative methods for the delivery of legal services into
the future.

14 | OSB Futures Task Force | Executive Summary

 In recent years, many different law school and consortium-based incubator and/
or accelerator programs have cropped up across the country, all seeking to address the
persistent issue of how to bridge the justice gap for underserved lower- and moderate-
income individuals who cannot afford traditional legal services but who do not quality
for legal aid. These programs come in different forms—some operating as stand-alone
incubators sponsored by a consortium of private stakeholders; others operating solely under
the auspices of a law school or state bar association. All, however, accomplish two goals: (1)
they create a space—often for newer lawyers—to provide direct legal services to low and
moderate-income individuals (the “incubator”), and (2) they create a platform for using,
developing, testing, and disseminating innovative methods to making those legal services
more accessible and affordable to clients in that target market (the “accelerator”).

As part of our inquiry into determining whether Oregon might benefit from a similar
model, we catalogued and reviewed the resources currently available for low and moderate-
income Oregonians and for new lawyers seeking to develop their legal practices. Both fall
short; based on that review, we have concluded that Oregon does not have sufficient legal
resources for low and moderate-income populations and that it remains challenging for
lawyers to build practices to meet the needs of that market in a sustainable way.

The accompanying report describes our investigation and reviews examples of existing
incubator/accelerator programs in more detail. It also includes a catalogue of the programs
we researched and reviewed, a summary of the challenges we identified with other
incubator/accelerator programs, and a detailed proposal for how Oregon might create an
incubator/accelerator model that is structured to avoid those challenges.

Further to that recommendation, we request that the BOG and the OSB do the
following:

8.1 Dedicate staff resources. We recommend that the BOG and the OSB commit
staff equivalent to one FTE dedicated to managing the incubator/accelerator project.
That one FTE might come from existing OSB staff, if available.

8.2 Form a program development committee. We recommend that the BOG and
the OSB form a program development committee dedicated to implementing the
incubator/accelerator program. One committee member should be a full-time OSB
staff member. Other members would represent stakeholder organizations, including
law schools; legal nonprofits; private law firms; LASO; and the law, business, and
technology communities generally.

8.3 Formulate the incubator/accelerator program details. OSB staff, together

with the planning development committee, should take the following additional steps
toward developing Oregon’s operating incubator/accelerator program.

Coordinate with stakeholders. The committee should convene a meeting of

program stakeholders, including representatives of private law firms, law schools,
members of the bar, nonprofit legal services entities, and LASO, among others.

Create a business plan. The committee should develop a plan for startup and
continuing financing of the proposed program. Sources of funding might include
community stakeholders (including law, business, and technology companies),
vendors, grant programs, and client fees.

Create a marketing plan. The committee should develop a plan for marketing
the services of the incubator program. This could include marketing through

OSB Futures Task Force | Executive Summary | 15

 existing channels or developing new ways for reaching moderate-income Oregonians
and educating the public about the program scope and resources.

Identify program hosts. We envision that the for-profit law firms in Portland and
across the state will host incubator participants and provide training, mentoring, and
other office resources. The program development committee should develop a plan
to market, identify, and obtain commitments from those firms.

Identify options for office space. This includes office space for both the program
staff and incubator participants. This task overlaps with the identification of program
hosts, as many law firm hosts should include, as part of their commitment, office
space for the participant(s) they host.

Design a program application process. The committee should design an application

process for the participant/fellows, which will include drafting job descriptions,
creating an application and review process, and developing a plan to advertise the
program and solicit applications.
of Legal Services in Oregon

Develop a mechanism for assessment program success. The committee should

identify the best metric for measuring the success of both the incubator and
accelerator components of the program. To do so, the Committee might consider
metrics such as number of matters addressed by program participants, populations
served, financial success of new lawyer participants, and extra-program use of
accelerator innovations.

We request that the planning development committee finalize the program, curriculum,
and stakeholders by fall of 2017, with applications ready to go out in the spring of 2018. The
BOG, the OSB, and the committee should aim to start the incubator/accelerator program in the
fall of 2018.

V. Conclusion

The question is not whether legal services will be provided differently than in decades
past. The question is whether it will occur with the active engagement of a Bar that is willing
to rethink longstanding assumptions and embrace emerging technology and new legal service
delivery models, or whether, as in some other states, the Bar will try to resist the forces of
change. Efforts to resist change will likely be unsuccessful. The appointment of this Task Force
reflects the Bar’s recognition that adhering to the status quo is not really a choice at all.

We look forward to working with the Board of Governors, the Oregon judiciary, and other
stakeholders to implement these recommendations in the months to come.

Respectfully Submitted,

OSB Futures Task Force

FUTURE

The full report and recommendations of the Regulatory and Innovations

committees and workgroups are available here:
www.osbar.org/_docs/resources/taskforces/futures/FuturesTF_Reports.pdf

16 | OSB Futures Task Force | Executive Summary

 OSB FUTURES TASK FORCE | COMMITTEES AND MEMBERS

REGULATORY COMMITTEE MEMBERS

Hon. Christopher L. Garrett, Oregon Court of Appeals (Chair)
John C. Davis, Lynch Conger McLane LLP
Ankur Hasmukh Doshi, RB Pamplin Corporation
Keith M. Garza, Law Office of Keith M Garza
Sandra A. Hansberger (Self-Navigators Workgroup Lead)
Kelly L. Harpster, Harpster Law LLC (Paraprofessional Regulation Workgroup Lead)
William Howe, Gevurtz Menashe
Ellen M. Klem, DOJ Attorney General’s Office
Jennifer Nicholls, Brophy Schmor LLP
Scott D. Schnuck, AltusLaw LLC
Bradley F. Tellam, Stoel Rives LLP
(Alternative Legal Service Delivery Models Workgroup Lead)
Timothy L. Williams, Dwyer Williams Dretke

REGULATORY COMMITTEE ADVISORY MEMBERS

Emily Farrell, University of Oregon Law School
Misha Isaak, Oregon State Board of Bar Examiners
Lisa J. Norris-Lampe, Oregon Supreme Court
Johnathan E. Mansfield, OSB Board of Governors
Janice R. Morgan, Legal Aid Services of Oregon
Linda Odermott, Oregon Paralegal Association
Sarah M. Petersen, Lewis & Clark Law School
Traci Rossi, OSB Board of Governors, Public Member
Theresa L. Wright, Willamette College of Law

INNOVATIONS COMMITTEE MEMBERS

John E. Grant, Principal, Agile Attorney Consulting (Chair)
Hong Kim Thi Dao, Professional Liability Fund
Leigh Gill, Immix Law Group PC
Troy Pickard, Portland Defender
Deborah K. Vincent, solo practitioner
Brent H. Smith, Baum Smith LLC
David Rosen, High Desert Law, LLC
Suk Kim, Urban Airship, Inc.
Kaori Tanabe Eder, Stephens & Margolin LLP
Nadia Dahab, Stoll Berne PC

INNOVATIONS COMMITTEE ADVISORY MEMBERS

Hon. Martha Lee Walters, Oregon Supreme Court
R. Ray Heysell, Hornecker Cowling LLP
Theresa L. Wright, Willamette College of Law
Emily Farrell, University of Oregon School of Law
Carol J. Bernick, Professional Liability Fund
Janice Morgan, Legal Aid Services of Oregon
Donald H. Friedman, retired OSB member
Robert J. Gratchner, OSB Board of Governors, Public Member
Sarah M. Petersen, Lewis & Clark Law School

OSB Futures Task Force | Executive Summary | 17

 Endnotes
1 Corporate clients continue to move work in house, turn to nontraditional legal services providers, and
harness technology to reduce legal spending, according to the Altman Weil Law Firms in Transition 2016
survey. Altman Weil, Inc., Law Firms in Transition 2016: An Altman Weil Flash Survey (May 2016), available
at http://www.altmanweil.com/LFiT2016/.
2 In addition to the well-known LegalZoom, more recent entrants into the online self-help legal space
include Avvo Answers (in conjunction with its better-known lawyer rating service), Rocket Lawyer, Docracy,
and Shake Law, among many others.
3 Commission on the Future of Legal Services, Report on the Future of Legal Services in the United States,
11 (American Bar Association 2016), available at http://www.americanbar.org/content/dam/aba/images/
abanews/2016FLSReport_FNL_WEB.pdf. In June 2017, the Legal Services Corporation released a new
report, finding that 86% of the civil legal problems reported by low-income Americans in the past year
received inadequate or no legal help. Legal Services Corporation, The Justice Gap: Measuring the Unmet
Civil Legal Needs of Low-income Americans (2017), available at http://www.lsc.gov/sites/default/files/
images/TheJusticeGap-FullReport.pdf. The report was prepared by NORC at the University of Chicago for
Legal Services Corporation in Washington, DC.
4 Commission on the Future of Legal Services, supra note 3, at 12, citing Number of Attorneys for People in
of Legal Services in Oregon

Poverty, National Center for Access to Justice, available at http://justiceindex.org/, archived at (https://
perma.cc/89C2-6EC5).
5 Id. (parentheticals omitted), quoting Rebecca L. Sandefur, What We Know and Need to Know About the
Legal Needs of the Public, 67 S.C. L. Rev. 433, 466 (2016) and citing ABA House of Delegates Resolution
112A (adopted Aug. 2006), available at https://www.americanbar.org/groups/centers_commissions/
commission-on-the-future-of-legal-services/whitepapers.html, archived at (https://perma.cc/R7HC-RSAN).
6 Id. at 15.
7 Id. at 14.
8 Id. at 15.
9 Id. at 14 (quoting Gillian K. Hadfield, Innovating to Improve Access: Changing the Way Courts Regulate
Legal Markets, Daedalus 5 (2014)).
10 Id.
11 The “Great Recession” that began in December 2007 had a particularly striking impact on private law
firms. In its 2017 Report on the State of the Legal Market, the Center for the Study of the Legal Profession
at the Georgetown University Law Center summarized that “[o]verall, the past decade has been a period
of stagnation in demand growth for law firm services, decline in productivity for most categories of
lawyers, growing pressure on rates as reflected in declining realization, and declining profit margins.” Thus,
private law firms sharply curtailed—and even stopped—hiring. Above The Law reports that 38 percent of
2016 law school graduates were unable to secure a full-time position in the legal profession, available at
http://abovethelaw.com/law-school-rankings/top-law-schools/.
12 See http://abovethelaw.com/2015/08/how-are-lawyers-managing-their-law-school-debt-most-will-never-
be-able-to-pay-it-off/.
13 National Center for State Courts, State Justice Initiative, Civil Justice Initiative: The Landscape of Civil
Litigation in State Courts (2015) at iv, available at https://www.ncsc.org/~/media/Files/PDF/Research/
CivilJusticeReport-2015.ashx.
14 See https://www.legalpleadingtemplate.com/
15 See https://www.rocketlawyer.com/document/legal-will.rl#/
16 See https://visabot.co/
17 Commission on the Future of Legal Services, supra note 3, at 16.
FUTURE

18 Id.
19 Altman Weil, Inc., supra note 1, at i.
20 Commission on the Future of Legal Services, supra note 3, at 8–9. A number of states—including
California, Florida, Michigan, New York, and Utah—have convened futures commissions, modeled on the
ABA’s effort, to examine ways to innovate and respond to emergent change in the legal services market.
Our Task Force reviewed these reports and recognizes the significant contributions of the many states that
preceded us in approaching these challenges.

18 | OSB Futures Task Force | Executive Summary

The question is not whether legal serivces will be
provided differently than in decades past. The
question is whether it will occur with the active
engagement of a Bar that is willing to rethink
longstanding assumptions and embrace emerging
technology and new legal serivce delivery models,
or whether, as in some other states, the Bar will
try to resist the forces of change.

OSB Futures Task Force, 2017

OSB Futures Task Force | Executive Summary | 19

OSB Futures Task Force
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