In a small concession, the resolution calls upon the
ABA to study and recommend amendments to the Model Rules of Professional Conduct to impose
safeguards on what it calls “strategic alliances” and “ancillary businesses”
that lawyers can form with nonattorneys.
The California delegation to the ABA supported deferring a vote on
the MDP issue, and State Bar President Andrew Guilford said he was disappointed by the
outcome. Nonetheless, he said the debate was valuable and “I believe the discussion
will continue to go on in California and across the country. The ABA vote might simply
remove the ABA from the discussion while it continues toward an ultimate resolution.”
“I think it has a negative impact on everyone who wanted to give
clients a choice on how professional services are delivered,” said Richard Miller,
general counsel of the American Institute of Certified Public Accountants, the leading
trade association for CPAs. Miller said the ABA action showed “no vision” and
charged that it demonstrated opponents of MDPs are “more concerned with maintaining
their guild” than with delivering legal services to clients.
The issue of multidisciplinary practices has moved to the forefront
of discussions about the legal profession as large accounting firms have expanded into the
legal services market overseas and are making similar overtures in the U.S.
Many attorneys, likewise, wish to form alliances with other
professionals in order to offer coordinated services as a means of responding to changes
in the marketplace and remaining competitive. Attorneys already work closely with
accountants, bankers, engineers, scientists and other professionals in many areas of
practice.
Backers of MDPs argue that restrictions on partnerships between
lawyers and nonlawyers and sharing legal fees are outdated, and that MDPs can be regulated
in ways that protect attorneys’ core values.
But opponents worry that an attorney who partners with a nonlawyer
may face challenges to his independent professional judgment and that the duties of
loyalty to and confidentiality of clients may be jeopardized.
At a recent meeting of the State Bar Board of Governors, called to
discuss MDPs and other key issues before the legal profession, the board itself was
sharply divided about multidisciplinary practice, although several acknowledged it’s
already happening.
The fundamental issue, suggested Bob Hawley, the bar’s deputy
executive director, “is whether the legal profession should consider changing its
delivery system,” something that hasn’t been done “since Perry Mason or
even Bleak House.” Under the current system, he said, lawyers “have basically
abandoned the vast majority of the market,” and those in that market are looking
elsewhere to have their legal needs met.
“If we don’t respond,” he added, “someone else
— like accountants —will. The public is at risk in ways we can’t even
fathom.”
Several bar governors expressed concerns that when lawyers partner
with nonlawyers, the attorney-client privilege and the obligation of holding client
secrets inviolate are threatened. One wondered who would regulate MDPs, while another
suggested such practices can easily be created if fee-sharing rules are relaxed.
Los Angeles attorney Tony Vittal, who is part of a national MDP
coalition, said no matter where people stand on this “incredibly complex”
question, “We’re looking at a change in the way law is practiced. In essence, it
is an opportunity to reinvent the legal profession.”
Agreed ethics expert David Bell, “This phenomenon will occur no
matter what the ABA says. The fight will go on. There’s a juggernaut rolling.” |
