Statement Of The Defense Research Institute On Commission Proposal For Facilitating Multidisciplinary Practice - Center for Professional Responsibility

STATEMENT OF THE DEFENSE RESEARCH
INSTITUTE ON COMMISSION PROPOSAL FOR
FACILITATING MULTIDISCIPLINARY PRACTICE

 

The Defense Research Institute is a 22,000-member association of lawyers primarily representing defendants in civil litigation. A substantial percentage of our membership are also members of the American Bar Association.

DRI's mission is to enhance the skills, effectiveness and professionalism of defense lawyers; anticipate and address issues germane to the defense lawyers and the civil justice system; promote the appreciation of the role of the defense lawyer; and to improve the civil justice system and preserve the civil jury. During the recent past, no issue has consumed more of DRI's attention than the threat to the independence of the defense lawyer. Such things as onerous and detailed billing and handling guidelines, as well as, "auditing" of attorney bills by third parties are impacting on the professionalism of defense attorneys and impeding the ability to exercise independent professional judgement. It is in this atmosphere that DRI received and reviewed the Report of the Commission on Multidisciplinary Practice ("MDP"). It is our view that the MDP model is another step down the road toward a corporate model of law practice in which the sanctity of the attorney/client relationship is subsumed to modern marketing methods. We are concerned that amending the Rules of Professional Conduct in the manner recommended by the Commission would have a major, negative impact on the independence of the practicing lawyer and the nature of law practice.

One remark in the Commission's Report demonstrates a lack of understanding of the current climate in the civil justice system. The report states, "[i]n today's world, many lawyers routinely work a practice settings in which they are subject to management oversight by non-lawyers... . Independence has been maintained in those settings." To the contrary, professional independence of judgement has in fact been severely impacted in some of those settings. Defense lawyers have experienced numerous instances of non-lawyers hindering their representation of clients. We can imagine a serious exacerbation of an already unsatisfactory situation when accountants, financial services organizations and the like are in a position to direct how defense lawyers defend their clients.

Ostensibly, the MDP proposal has been fathered by an "expression" of consumers of legal services that they would enjoy the convenience of one-stop shopping for professional services -- an "expression" which the Commission admits is not supported by any empirical data. A lawyer is not the same as a jewelry department at Wal-Mart. This is especially true in the United States. A lawyer in this country plays a much different role from the role played elsewhere. In the United Kingdom the profession is divided between barristers and solicitors. In continental Europe the legal system and its goals are much different than that intended by the Founders. DRI sees little relevance between the European experience with a mult-disciplinary practice and the delivery of legal services in this country. Moreover, there is much anecdotal data suggesting many European lawyers are not enthusiastic about the MDP model. In any event, Americans expect their lawyers to be true to the tradition that produced John Adams, Clarence Darrow and Thurgood Marshall -- lawyers who zealously represented even the most unpopular and unprotected clients.

Americans deserve to have lawyers who are true to this tradition. Mixing the practice of law with the practice of professions which may have contradictory obligations will not serve the interests of the vast majority of American citizens. You have by now, no doubt, heard much about how the code of conduct binding us differs from the one biding auditors. We cannot emphasize enough how little appreciation some of the non-lawyers who supervise lawyers have for the meaning of our code of conduct. Non-lawyer managers of litigation often times disregard important canons relating to client confidences and the independent exercise of professional judgment. Probably innocently, they simply do not understand the rules that govern our conduct. DRI believes this problem would be exacerbated under the MDP model.

The Commission intends to insure continuation of adherence to the Rules of Professional Conduct that separates the legal profession from others. The Commission suggests that this can be accomplished by requiring MDP firms to report to and be regulated by those bodies in our states that now regulate lawyers. In most states this is the Supreme Court. DRI believes it is at best wishful thinking and at worst naive to suggest that underfunded court systems can regulate powerful economic interests. This is particularly true if those economic interests do not wish to submit to such regulation. A recent resolution adopted by the American Institute of Certified Public Accountants makes it clear that the accounting firms have no interest in submitting to regulation by our state supreme courts. The AICPA enthusiastically endorses the mechanism that will give the accounting firms the means of taking over the legal profession. Yet it strongly criticizes any proposals that would attempt to regulate the conduct of MDPs so that needed Rules of Professional Conduct are followed.

Finally, DRI fears for the future of the civil jury trial - a fundamental right given to every citizen - if the independent bar is folded into the multi-disciplinary megapractices. We have seen in recent years attempts to reduce access to civil juries with no-fault legislation in the public sphere as well as binding arbitration provisions in private contracts. Some have advocated abolishment of the civil jury entirely. The trial bar has been the bulwark of opposition to such measures. If lawyers are reporting to non-lawyer supervisors who will have control over their compensation and career advancement, will those lawyers have the same passion to speak out on the preservation of fundamental rights provided to our citizens such as the civil jury? Will the zeal of such lawyers for participating in organizations such as DRI and the ABA be "chilled"? In Great Britain, the civil jury has been all but abolished. Only an independent bar can preserve this precious right as well as other fundamental rights granted our citizens.

We urge the ABA to refrain from adopting the recommendations of the Commission. At the very least the ramifications of the adoption of the proposal should be studied further. Input should be sought from a much broader base than heretofore has been the case.

Thank you for the opportunity to present our views.

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