ABA Standing Committee on Specialization
Peter B. Freeman, Chair
M E M O R A N D U M
To: ABA Commission on Multidisciplinary Practice
From: The Standing Committee on Specialization
Re: Comments on Multidisciplinary Practice and the Legal Profession
Date: May 11, 1999
Thank you for inviting the ABA Standing Committee on Specialization to submit comments to the Commission on the important topic of multidisciplinary practice. At a recent meeting, the Standing Committee had an opportunity to discuss the impact of multidisciplinary practice on legal specialization and certification of lawyer specialists. The Standing Committee has not, however, had an opportunity to conduct a systematic study of these phenomena, to examine the ethical challenges posed by multidisciplinary practice or to evaluate potential changes to the Model Rules of Professional Conduct. As a result, these comments reflect the preliminary views of the Standing Committee on the effect of multidisciplinary practice on legal specialization, the role of legal specialists in multidisciplinary practice, and the relationship between legal and ethical regulation of legal specialists and multidisciplinary practice.
The Committee believes that professional services firms are attracting increasing numbers of legal specialists to their organizations and that these firms are engaged in an expanding number of fields, frequently providing legal and law-related assistance – in one form or another – to businesses and individuals. Professional service organizations seek legal specialists, and specialized lawyers often are attracted to multidisciplinary practice as a practice environment.
Inclusion of legal specialists in multidisciplinary professional service organizations raises questions regarding the definition of legal services and the attorney-client relationship, including the duties of loyalty and confidentiality, and the duty to avoid conflicts of interest. The Committee is concerned about the ability of lawyers in multidisciplinary practices to maintain ethical standards of practice and even to comply with the law. The members of the Standing Committee recognize that arguments are being made to amend the Model Rules of Professional Conduct to reflect changes in the practice arena and to enable lawyers to compete effectively in respond toan increasingly multidisciplinary world. Nonetheless, the members believe that the central ethical standards and duties of the lawyer to the client should be maintained, regardless of the form of enterprise or business organization through which legal services are provided.
The Standing Committee is unable at this time to assess precisely the impact of multidisciplinary practice on board certification of legal specialists. Programs providing voluntary board certification provide a valuable credential for lawyers in specialized practice and play an important role for the legal profession. The Association has adopted Model Standards for Specialty Areas that have been used to develop both state and private certification programs. The Association has also accredited eleven certification programs, sponsored by five organizations, covering diverse areas of practice. There are some preliminary and informal indications that lawyers practicing in multidisciplinary settings may not be eligible for certification as legal specialists by existing state and ABA-accredited programs because of the form of organization in which they practice. The Committee believes that serious consideration should be given to ensuring that appropriate certification programs, which protect the public, are available to practicing lawyers, regardless of the form of organization in which they practice.
The Standing Committee is unable at this time to assess precisely the impact of multidisciplinary practice on board certification of legal specialists. In order to evaluate these issues further, the Standing Committee has established a subcommittee to gather available information and the Committee will consider initiatinge studies to help determine the impact of multidisciplinary practice on specialization and certification programs for lawyers in specialized practice. Among the information the Committee will attempt to establish are:
- the number of legal specialists practicing in multidisciplinary settings and the nature of the specialties involved;
- the number of legal specialists engaged in multidisciplinary practice who are certified by state or ABA-accredited programs, as well as the impact of eligibility requirements on certification of specialists in multidisciplinary organizations; and
- the number of lawyers who are certified by non-legal certification programs sponsored by other professional organizations.
The Committee plans to continue its discussions concerning the ethical and professional issues raised by the practice of legal specialists in multidisciplinary settings.
Through recent e-mail correspondence, the Commission has asked the Standing Committee to address the following question:
"If you permit multi-disciplinary practice in the United States, what stops Andersen Consulting from advertising, ‘We specialize in helping our clients solve the most difficult environmental, tax, etc. problems. Our lawyers are the best.’"
The Standing Committee believes that unregulated advertising by legal specialists can undermine the state and ABA-accredited voluntary board certification programs, and advertising by those engaged in the practice of law should conform to ethical standards for lawyers’ professional conduct. The organizational form or setting in which lawyers practice should not dilute their duty to adhere to the applicable standards of conduct. In addition, Model Rule of Professional Conduct 7.1(c) prohibits comparisons of lawyers’ services with those of other lawyers – e.g., " our lawyers are the best" – unless such comparisons can be factually substantiated.
We hope that these comments are helpful to the Commission. The Standing Committee remains ready to assist the Commission, in any way possible, with its ongoing consideration of the legal profession’s response to issues surrounding multidisciplinary practice.
Submitted by the ABA Standing Committee on Specialization:
Peter B. Freeman, Chair
Members of the Committee:
J. David Andrews
Donna G. Barwick
John M. Brumbaugh
Michael C. Ferguson
Richard D. Lee
Beverly J. Tarpley