 Two 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.
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