April 6, 2000

Commission on Multidisciplinary Practice
Center for Professional Responsibility
American Bar Association
541 North Fairbanks Court
Chicago, Illinois 60611

Dear Members of the Commission:

As representatives of a variety of consumer groups from across the nation, we continue to be extremely interested in the American Bar Association’s ongoing debate on multidisciplinary practice. A number of us previously submitted written comments to or testified in person before your Commission. We strongly support changes to the profession’s model rules that would permit lawyers and non-lawyers to work together in multidisciplinary firms, for such changes would give consumers a broader range of choices in where and how they get legal assistance. But we are profoundly disappointed in the bar’s recent action of endorsing increased unauthorized practice of law enforcement, which appears not only to be a hardening of the bar’s position against MDPs, but, more seriously, threatens to deny consumers access to existing legal services even further by attacking providers of those services who work in practice environments other than a traditional law firm.

As the Commission members prepare to present a set of revised recommendations on the MDP issue to the full American Bar Association, we wanted to take this opportunity to offer the consumer perspective on a number of issues currently under discussion.

1) Consumers want more choices. We applaud the Commission for recognizing, in its December "updated report," that there is ample evidence of consumer demand for multidisciplinary practices. We agree. While it is true that consumer demand can probably never be quantified, one need only spend a few minutes on your web site to find overwhelming evidence of the need for multidisciplinary services. You have received testimony and letters from consumer leaders, small business owners, as well as representatives from advocacy groups for minorities, senior citizens, economically-disadvantaged families, and women, all telling the bar that multidisciplinary practices will go a long way toward making lawyers more accessible to all Americans. We are saddened that so many members of the bar seem skeptical of the Commission’s conclusions on this point. The reality is that more consumers will be able to satisfy basic unmet legal needs – such as will preparation or estate planning – if multidisciplinary practices are permitted.

2) Few problems in today’s society are strictly legal in nature. The consumers we represent have told us again and again that they encounter few problems that are strictly legal in nature. Whether it is incorporating a small business, purchasing a home, arranging care for an elderly relative or settling an estate, most problems have a legal dimension, but also require the services of one or more other professionals. Individual consumers simply lack the time and the financial resources to identify and meet with the different professionals whose assistance is required, and to sort out the conflicting advice that they receive. Consumers would be well served by one firm of many different professionals – a single point of entry – through which they could obtain linked, interrelated professional services.

3) Lawyer-controlled MDPs will not further consumer choice. We take issue with the claim that only lawyer-controlled MDPs can preserve the independent judgment of the lawyer, and thus protect the interests of the consumer. Lawyers have always been obligated to exercise independent judgment on behalf of clients, and are subject to disciplinary sanctions when they do not. If the bar’s concern is protecting the independent judgment of lawyers in an MDP, that concern can be addressed through supervision of lawyers by other lawyers in the organization and by disclosure to the client. A client can then make his/her own decision whether or not to use an MDP, based on the potential risk that a lawyer’s judgment in the entity might be compromised. The opportunity for a client to select an integrated service provider should not be artificially constrained by the bar’s requirement that lawyers possess the power to resolve all issues relating to finances, management, operations and ethics in such providers.

4) Threatening non-lawyers for providing needed services they have been providing for years will further restrict consumer choice. As the Commission appears to acknowledge in its December report, many lawyers in law firms currently provide client services that are also properly provided by non-lawyers. Estate planning advice, tax return preparation and certain financial planning services are just a few examples of services that can be properly provided by lawyers in law firms, individuals trained as lawyers but working in another setting, or even non-lawyers with specialized expertise. Our understanding of the Commission’s proposed definition is that all of these services would constitute the "practice of law" because they are or could be offered by lawyers in law firms. We believe that attempting to restrict non-lawyers from offering services they have been appropriately providing for years by redefining the "practice of law" is inappropriate and further limits consumer choice. We are pleased that the Commission has indicated that it plans to revisit this issue and propose a revised definition in its final recommendation.

Of even more concern is the notion that unauthorized practice of law cases could be brought against individuals and firms who perform these kinds of services outside a law firm. The recently-adopted resolution by the American Bar Association to step up enforcement of unauthorized practice of law statutes underscores the profound disconnect between the legal profession and the average consumer. These threats will immediately chill competition from non-lawyers, depriving consumers of options that they have relied upon for many years. It is not in the public interest for consumers to be forced to seek such services only from lawyers in law firms. Moreover, we believe that unauthorized practice of law statutes were created to protect the consumer from bad advice received from charlatans posing as lawyers. They were not designed to prohibit lawyers from offering legitimate, much-needed services in a location other than a law firm. To attack those individuals is to turn a blind eye to the needs of consumers.

5) A fully integrated model best meets the needs of consumers, provided that ethics are protected. In our view, the "fully integrated model" set forth by the Commission in its December report is the option that will offer the most choice to the consumer. A professional services firm that includes lawyers and nonlawyer professionals, such as estate planners, accountants, tax professionals and other experts, is in the best interest of consumers because it provides professional synergies and economies of scale.

Opposition to MDPs appears to us to be rooted in economics rather than ethics. Lawyers seem to want to preserve the status quo, and force consumers to bear the risk of conflicting advice and additional expenditures of time and money, while assuring themselves a monopoly on providing these services. Economic protectionism has no place in this debate. Rather, the bar should be prepared to work with consumer groups to define the conditions in which MDPs can operate so that the consumer is not denied core protections, such as conflict-free advice and the attorney-client privilege. In working towards this goal, the bar must remember that these protections exist for the benefit of the consumer user of the services, and it should not seek to unilaterally impose conditions that will make MDPs an unworkable option.

In this country, the middle class lacks access to basic legal services. Ordinary consumers encounter a variety of situations -- including issues relating to personal finances and estate planning, housing, domestic relations and family law, personal injury, and employment – where the services of a lawyer would be advisable, but all too often these consumers do not seek or obtain legal services. Multidisciplinary firms provide an attractive, additional alternative to the choices available today, and would increase consumer access to legal services. Of course, not every consumer would choose to make use of a multidisciplinary firm; indeed, many will not. But the bar should not be making this choice on behalf of the consumer. We urge the American Bar Association to reform its rules and provide consumers with this choice.

Sincerely,