Citing “political challenges” within the American Bar Association, and reportedly out of fear of budget cuts or even its own shutdown, the ABA’s Center for Innovation canceled publication of an op-ed arguing in favor of regulatory reform, only notifying its authors on the day it was to have been published this week.
This comes as the ABA convenes its 2023 annual meeting this week in Denver, where the Center faces both budget-review meetings and a change in the composition of the governing council that oversees its work, including, if elected, a new chair who opposes regulatory reform.
The Center had agreed to publish the op-ed as part of its biannual innovation trends report, which was scheduled to be released Aug. 1. Instead, the Center pulled the plug on the piece, fearing its position would be controversial within the ABA and could endanger the Center’s funding or continued existence.
While the Center reportedly made the decision not to publish the piece in June, it did not notify the op-ed’s authors until Tuesday, the day it was scheduled to be published — and only after I inquired about the op-ed’s status.
LawNext Has the Full Op-Ed
Fortunately for readers of LawNext, you can read the full op-ed here. The authors, Maya Markovich, executive director and cofounder of the Justice Technology Association, and Tom Gordon, executive director of Responsive Law, an organization that represents the consumers’ voice in the legal system, agreed to allow me to publish it.
They will also discuss the op-ed in an episode of my LawNext podcast which will be posted on Monday.
Op-Ed on DoNotPay Controversy
Representatives of the Center declined to speak with me on the record about what happened. Joseph Gartner, the Center’s director and counsel, referred me to the ABA’s media relations office. Others I’ve reached who serve on the governing council have declined to comment.
Even so, here is what I know.
The story begins back in January. Readers may remember the controversy that erupted then over the company DoNotPay, which billed itself as the world’s first robot lawyer, and its founder Joshua Browder. They became the subject of harsh criticism after paralegal Kathryn Tewson tested several of DoNotPay’s self-help legal apps and concluded they were little more than smoke and mirrors – in some cases getting the law wrong, in others failing even to deliver the promised output.
Tewson’s allegations sparked international news coverage, and in their wake, my LawNext podcast had an exclusive interview with Browder, in which he called the criticism “a bit of a nothingburger.” I followed that interview with one with Tewson, in which she described in detail how she tested the DoNotPay products and responded to Browder’s dismissal of her critique.
Following those events, Markovich and Gordon co-authored an op-ed in which they argued that reforms in the regulation of the practice of law, such as those implemented in Utah, could have prevented the DoNotPay debacle, since DoNotPay would have had to have been licensed and regulated.
(As I said above, you can read that op-ed here on LawNext.)
The Center for Innovation agreed to publish their op-ed in its biannual innovation trends report, which was scheduled to be released Aug. 1.
In anticipation of that publication, I recorded a LawNext podcast interview with Markovich and Gordon in which we discussed their op-ed and their views more broadly on regulatory reform. We agreed that I would post that interview this week, following the Aug. 1 publication of the op-ed.
On Monday, I emailed Gartner, the Center’s director, to ask whether the publication would be coming out on schedule and where I would be able to find and link to it. Receiving no response that day, I emailed Markovich and Gordon on the morning of Aug. 1 to ask if they had the link.
As it happens, Markovich was almost simultaneously emailing me regarding an email she’d received from Gartner advising her that the publication had been cancelled and apologizing for not telling her sooner. Reportedly, it was my email to him the day before that spurred him to email her.
Later that day, Gartner also emailed me.
Why Did this Happen?
So why did the Center cancel the publication of this op-ed. Here is what I have been able to piece together.
First, it is no secret that the issue of regulatory reform remains controversial among lawyers generally and most certainly within the ABA. Particularly controversial is the issue of allowing the delivery of legal services by providers that are not lawyers, as Utah did when it approved sweeping changes in legal services regulation in 2020.
This was evidenced at last year’s ABA annual meeting, when the House of Delegates voted, as I wrote at the time, “to send a decidedly mixed message, approving a resolution to double down on its prohibition of non-lawyer ownership, while also amending the resolution to add a nod toward state innovation efforts.”
Meanwhile, in recent years, the Center for Innovation, to its credit, has played a key role in driving the national conversation about innovation in the delivery of legal services. Last year, for example, the Center launched a website, Justice System Metrics, to catalogue the key metrics and performance indicators that can be used to evaluate progress and innovation in the justice sector.
Gartner, the Center’s director, participated in a special 2021 episode of my podcast that featured a panel discussion of the issues surrounding regulatory reform.
The Center was created in 2016 on the recommendation of the ABA’s Commission on the Future of Legal Services, whose 2016 Report on the Future of Legal Services in the United States called for, among other things, the ABA to create a center that “would be responsible for proactively and comprehensively encouraging, supporting, and driving innovation in the legal profession and justice system.”
Invariably, the Center’s work has included consideration of issues around regulatory reform, while taking no decisive position for or against it — at least none that I’ve seen.
But the Center had already come under fire from some within the ABA for its 2022 innovation trends report, in which it included a favorable piece about Rocket Lawyer’s experience in the Utah sandbox.
Some who are familiar with the Center believe that recent events suggest that higher-ups in the ABA are seeking to weaken or even shutter the Center. Two recent events, in particular, gave fuel to this belief:
- Early in June, the ABA’s finance committee notified the Center that it would be conducting a review of the Center’s budget, with an eye toward determining whether the amount of its budget is justified. Some who are involved with the Center believe this was an attempt to cut its funding significantly or even entirely. Those discussions with the finance committee continue and will be the subject of a meeting next week in Denver.
- Following that, the president-elect of the ABA, Mary L. Smith, who will take office this week, nominated a slate to serve on the Center’s governing council that reportedly rejected the Center’s own recommended slate in favor of individuals who have been openly opposed to regulatory reform.
With Arizona lawyer Don Bivens’ term as chair expiring, the Center’s current governing council and staff had recommended a slate that would replace Bivens with Patrick Palace, the Washington state lawyer who has been the Center’s co-vice-chair and who has been an advocate of regulatory reform.
Instead, Smith’s slate removes Palace from his spot as a voting member of the council and names as chair New York lawyer Stephen P. Younger. Younger has been a vocal opponent of regulatory reform since 2011, when he chaired the New York State Bar’s Task Force on Nonlawyer Ownership, and he was a key supporter of the resolution I mentioned above (Resolution 402) that the ABA adopted last year.
In fact, as far as I can determine, all but one of the Center’s recommendations for new council leaders and members were rejected — and that one was given a non-voting role as an advisor, alongside Palace and former ABA President William Hubbard.
In place of those names, Smith’s slate includes several others who have vocally opposed regulatory reform.
(The slate is subject to vote by the House of Delegates next week. Although I have requested the slate from the ABA, I was told it will probably not be available until after the vote next week.)
The Cancellation of the Op-Ed
Against this backdrop, someone (or several someones) at the Center — reportedly Thomas Rombach, the Michigan lawyer and former Michigan state bar president who chaired the Center’s innovation report and who also serves on the ABA’s Board of Governors — made the decision to cancel publication of the op-ed by Markovich and Gordon. Unfortunately, no one told Markovich and Gordon, at least not until Aug. 1, the day the piece was supposed to come out.
That day, Gartner emailed Markovich the following:
“I’m reaching out to close an apparent communication gap regarding the article you and Tom Gordon had written about Do Not Pay which Patrick had circulated to the 2023 trends report committee.
“In June it was decided that the piece wouldn’t be included in the 2023 report. This decision was made after careful consideration and was due to the political challenges the center is currently facing within the ABA. At that point, staff typically communicates with any outside authors but that didn’t seem to have happened here as Patrick had advised me you were unaware of this. I deeply apologize for this oversight.”
Later that day, Gartner also emailed me, writing, “The piece was submitted for the CFI trends report but after consideration it was not included. There was a communication gap with Maya and Tom which lead to a misunderstanding about its inclusion in the report.”
Gartner, by the way, will reportedly be named this week to lead a new task force on AI that new President Smith will announce during the annual meeting.
‘Problems of Self-Regulation’
“This is indicative of the larger problems of self-regulation,” Gordon, the op-ed’s coauthor, told me. “Here you have the group within the lawyer establishment that should be most receptive to discussing lawyer regulation, and they don’t even want to publish this fairly mild critique of the lawyer regulation system. This demonstrates why self-regulation is problematic.”
After speaking with several sources with knowledge of this situation, I have to agree with Gordon. The conclusion seems clear that the Center cut the op-ed out of fear over the political situation within the ABA and that it could exacerbate efforts to undermine or neutralize the Center’s work.
In fairness, the inquiry by the finance committee might well have nothing to do with targeting the Center for its work. It could be related to belt-tightening throughout the ABA. Unlike some divisions of the ABA that generate revenue, the Center generates no revenue and, apart from some grants, is largely dependent on the ABA for supporting its operations.
That means they are more susceptible to budget cuts than other groups within the ABA, regardless of their position on issues such as regulatory reform. But one ABA insider I spoke to conceded that, if the Center angers certain people within the ABA, it will be an even more prime target for budget cutting.
That said, this is not just about the finance review. The cancellation of the article also comes at a time when the Center’s governing body is undergoing a changing of the guard from leadership by Bivens, who has played a central role in Arizona’s regulatory reforms, to Younger, who has outspokenly opposed reforms, and an apparent stacking of that body with others who oppose reform.
For me, the bottom line is this: As the nation’s leading and largest legal organization, the American Bar Association should be driving robust and even-handed discussion and debate of the issues around regulatory reform and access to justice. Instead, the atmosphere within the ABA is such that the very entity within the ABA that should be at the forefront of such a discussion instead feels forced to cancel even a short and relatively mild opinion piece arguing in favor of regulatory reform, out of fear for its future.
Whether some in the ABA like it or not, the world is changing when it comes to the delivery of legal services. As the ABA convenes this week in Denver for its annual meeting, it should be asking itself whether it wants to play a leading role in shaping that changing world — taking into account all views of what that world might look like — or if it would rather stifle any consideration of a future that might be inconsistent with the views of some of its members.