|The recommendations of the ABA Commission on Multidisciplinary Practice
came before the ABA House of Delegates for a vote at the ABA annual meeting last month in
Atlanta. The subject of much notoriety and debate, the commission's recommendations call
for amendment of the Model Rules of Professional Conduct to permit lawyers to share legal
fees with nonlawyers and to form multidisciplinary practices (MDPs) with nonlawyers to
provide both legal and nonlegal services to clients. The recommendations are the
culmination of a relatively short, but active, study process by the commission, which was
appointed in 1998.
was evident prior to the Atlanta vote that the commission, facing increasing opposition to
its recommendations from the states, would move to defer consideration of its
recommendations by the House of Delegates. When the commission moved for a deferral
resolution, however, the house, by a 3-1 margin, adopted this stiffer resolution:
"Resolved, that the American Bar Association make no change, addition or amendment
to the Model Rules of Professional Conduct which permits a lawyer to offer legal services
through a multidisciplinary practice unless and until additional study demonstrates that
such changes will further the public interest without sacrificing or compromising lawyer
independence and the legal profession's tradition of loyalty to clients.
The adoption of this resolution, with its strong directive language, is remarkable in
several ways. First, it shows the degree to which the house (e.g., the states) wants to be
heard on the MDP issue. The delegates could have adopted the commission's pro forma,
procedural resolution. Instead, they adopted a substantive resolution mandating strict
preconditions to rule amendment.
Second, the resolution is remarkable for its unequivocal support of the legal
profession's core values of professional independence and client loyalty. That the House
of Delegates supports such core values is not remarkable in itself. What is remarkable is
that the house makes maintenance of these core values a formal prerequisite to rule
Third, the resolution is remarkable for mandating and detailing the
"additional" MDP study that must be accomplished. The required study must
demonstrate that rule amendments which permit MDP practice will:
Further the public interest; and
Neither sacrifice nor compromise core values of
professional independence and client loyalty.
This additional study indicates that the House of Delegates is not satisfied with the
depth of the commission's research to date and does not believe that the commission's
recommendations and report address these substantive issues adequately.
Finally, the resolution is remarkable for its educational and outreach values. It
informs lawyers that the model rules have not changed yet, but may. It identifies key MDP
issues and invites comment from interested parties. It forces the commission and the ABA
to become better educated on key issues before acting to amend the model rules.
Although the MDP issue has been debated heavily before the commission (and across the
country) over the past year, round one has now ended and round two is beginning. It
appears that the commission, now at the end of its appointed term, will continue on and
make a further report to the House of Delegates, perhaps at the ABA annual meeting next
year, possibly sooner. Commission staff informs me that the commission will continue to
collect input on the subject of MDPs.
It is now critical for the "rank and file" membership to get involved and
provide comment to the MDP Commission, either individually or through representative bar
associations. All California members, regardless of practice setting, have a direct
economic and professional stake in the outcome of the MDP debate.
Now is the time to get educated and to speak. California members should obtain the
commission's report and recommendations (found at www.abanet.org), check in with
representative bar associations and provide comment.
David M.M. Bell, now in private practice,
formerly was State Bar director of professional competence, overseeing rule development
and the Ethics Hotline. He can be reached at firstname.lastname@example.org.