California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - APRIL 2000
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California Bar Journal

The State Bar of California


REGULARS

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Front Page - April 2000
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News Briefs
Election schedule set for board, CYLA vacancies
Bar court judge appointments process to be reviewed
Newest board member dies
Ventura County mobile legal center cited by ABA
ABA offers three CLE programs
Bar, Western State plan annual ethics symposium
Penalty for late bar dues moved to April 28
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Legal Tech - UM: The leading edge of convergence
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Opinion
From the President - Link starting salaries with service
Easy to destroy, hard to rebuild
2 trains on a collision course
Keep the judiciary independent
Letters to the Editor
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MCLE Self-Study
Viewing the Subdivision Map Act
Self-Assessment Test
MCLE Calendar of Events
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Public Comment
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Discipline
Ethics Byte - More on the written agreement
Charges of grand theft, sexual battery lead to bar hearing
Attorney Discipline

OPINION

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2 trains on a collision course
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By DAVID M.M. BELL
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David M.M. BellTwo trains are running toward each other at the ABA. Both trains are on the same track and carry a lot of weight. Both are going fast, perhaps faster than they should. When they meet, there may be a spectacular explosion. One can only hope that the ABA House of Delegates isn’t asleep at the switch.

One train is the ABA Ethics 2000 Commission, laden with amended Model Rules of Professional Conduct. The other train is the ABA Commission on Multidisci-plinary Practice, pulling its heavy MDP load. (In an MDP, lawyers could enter into partnerships with non-lawyers to provide mixed professional services, including legal services, and could share legal fees.)  

These trains are highly polished, first-class Commissioner Models. They are well appointed and fast. I think of them fondly as the Ethics Express and the MDP Missile. At this point, their destinations appear clear.     

The Ethics 2000 Commission is moving to harmonize the Model Rules with the recently revised ALI Restatement on the Law Governing Lawyers. In doing so, the commission is adding more black-letter duties and more explanatory language to the model rules. Lawyers will have more guidance but will also have more duties and directives. Some argue that lawyers need this additional guidance, while others fear the commission’s approach will lead to unnecessary micro-management of lawyers. 

Meanwhile, the MDP Commission, which recommended in 1999 that the model rules be relaxed to permit fee sharing and the formation of law partnerships with non-lawyers (recommendations rejected by the ABA House of Delegates at last year’s ABA annual meeting), has recently released a follow-up informational report and request for comment. The report conveys a sense of defensiveness on the part of the MDP Commission. I believe the MDP Commission will ultimately resubmit its previous fee-sharing and partnership recommendations (with some amendment and more justification) to the House of Delegates for approval. The report shows that, for good or ill, the MDP Commission is influenced by the aggressive expansion of the large accounting firms into the legal services market.    

The Ethics Express and MDP Missile are on a collision course. They are big trains rolling toward opposite destinations along the same track, the legal ethics track. One, the Ethics Express, is about defining increased ethical duties on lawyers while the other, the MDP Missile, is about defining decreased ethical duties on lawyers. Both trains are moving fast because they have a schedule to keep, are well run and have built up momentum. Each train’s engineers know the other train is on the same track, but appear unfazed.

The Ethics Express and MDP Missile must pass through the House of Delegates, the ABA’s Grand Central Station, to reach their destinations. The MDP Missile arrived with its boxcar of recommendations last year and was sent back down the line — apparently, just a temporary reroute. It will churn back into the station with its final report and recommendations by this month (for consideration by the House of Delegates in July). Meanwhile, the Ethics Express is currently anticipated to pull into the station by August 2001. 

How matters play out remains anyone’s guess. ABA brass may seek to avoid or ameliorate a collision by appointing yet another committee to harmonize the final recommendations of the Ethics 2000 and MDP commissions. However, it will be the House of Delegates that makes the final call. Within the ABA, the House of Delegates is the only body that can slow these trains down or throw the switch to place them on separate tracks to avoid collision.

Ethics expert David M.M. Bell, now in private practice, formerly ran the State Bar’s Ethics Hotline. He may be reached at dmbell@dnai.com.