Oral Testimony of Jay G. Foonberg,

a practitioner from Santa Monica, California

A practicing lawyer, he is also a non-practicing CPA and one of the founders and past president and currently a director of the American Association of Attorney-CPAs, has been on the Council of the Law Practice Management Section and is currently a Delegate at Large in the ABA House of Delegates.

He related the perception of many non-ABA member lawyers is that the ABA is doing little or nothing to assist in preventing non-lawyers practicing law. He feels this perception explains the unwillingness of many attorneys to belong to ABA. He expressed four concerns in protecting the public: 1) constitutionality: how can a person with no training in constitutional law render advice relative to the constitutional rights and responsibilities of the client including the First, Fourth, Fifth or Fourteenth Amendments with such legal advice regarding self-incrimination, due process, equal protection and other Constitutional rights and responsibilities; 2) pro bono: who will help the poor and the unpopular? how many death penalty appeal cases is a Big Five accounting firm going to handle each year for the indigent? 3) grievance supervision and responsibility: will nonlawyers who provide legal services agree to be subject to the rules that apply to lawyers? Who will police these violations? It's a question of Respondeat Inferior - "it's the lawyer's problem not mine. I just pay his paycheck, if he doesn't do what I tell him I just don't give him a paycheck." Will employers of lawyers be subject to discipline if they require lawyers to do things that violate the rules? 4) definition of conflicts and lack of loyalty: if an accountant doesn't have a financial relationship with the client he doesn't have a conflict (The accountant's definition of conflict relates to being financially independent) whereas for a lawyer if a relationship with another client or third person impairs client loyalty in any way there is a conflict. An accountant is loyal to the statements and a notary is loyal to the transaction. The lawyer's definition of loyalty is non-existent. Will accountants or other nonlawyers agree to be bound by the lawyer definition of conflicts and loyalty when handling a legal matter?

He considers the words "multidisciplinary practice" a euphemism for nonlawyers practicing law. He said tow truck owners would be included in MDPs as defined. He said there is a perception that the ABA is already in favor of joining with the AICPA, with the big boys getting together with the big boys for the benefit of a few multi-national clients.

He used the institution of the notary in civil law jurisdictions doing what lawyers do in America, with the notary's loyalty like an accountant's loyalty being to the transaction rather than either client, as an illustration that American and European values are totally different because in the U.S., the individual and protection of individual rights and the common law system of law is more important than filling out forms correctly. Immigrants go to notaries in the U.S. believing that the notary is a lawyer or renders legal services.

In response to Professor Daly's question Mr. Foonberg expressed a problem with control in an MDP; he doesn't think lawyers who practice for the public should be on the payroll of nonlawyers. In an MDP he said a nonlawyer giving legal advice to the public as well as a lawyer giving legal advice should be all subject to the lawyer disciplinary system in order to ensure the client can redress a wrong. He would discipline a nonlawyer in the jurisdiction where the client lives or is headquartered or where the services are performed and he would sanction the firm. Asked about client consent to the use of non-lawyers doing legal work or firewalls in the event of conflict, Mr. Foonberg said he isn't confident that clients are properly advised by independent counsel of what it is they are waiving. He is concerned that the person seeking waiver from clients on conflicts may have no legal training. In an MDP he is concerned that a lawyer control the legal services and sees a need for a complete ethical and financial firewall between legal and nonlegal services. He doesn't have a problem with a law firm which accepts and makes referrals of clients to non-lawyers and vice-versa, as long as the sharing of expenses is not a subterfuge for the sharing of income or profits and providing only lawyers provide the legal advice. It would be problematic for him if the person who makes the money from lawyers giving legal advise to the public was not subject to lawyer discipline.

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