Letter from Brian V. Howe, Chairperson Probate and Estate Planning Section Council, State Bar of Michigan - Center for Professional Responsibility

March 29, 1999

The American Bar Association
Commission on Multidisciplinary Practice
750 North Lake Shore Drive
Chicago, IL 60611

As chairperson of the Council of the Probate and Estate Planning Section of the State Bar of Michigan I am writing this letter in response to your Background Paper dated January, 1999. Our section is the largest section of the State Bar with over 5400 members. Our members have seen unauthorized practice of law issues grow in Michigan. Members of our Council realize that the practice of law has and will continue to undergo change. The guiding principle behind the unauthorized practice of law statutes and the rules of professional conduct in Michigan and elsewhere is the protection of the public. This principle should guide your committee as it proceeds.

This letter is a statement of the position of the Council of the Probate and Estate Planning Section of the State of Michigan and does not reflect the position of the State Bar of Michigan itself.

THE MICHIGAN EXPERIENCE

Michigan has witnessed a steady increase in "marketers" selling will and trust kits. These non-lawyers sell their products by using misleading and often false advertising. The estate planning documents created by these unlicensed individuals are often poorly drafted, and when represented to accomplish estate tax planning, are often defective.

State Bar associations, including the State Bar of Michigan, have been reluctant to prosecute the unauthorized practice of law for a number of reasons including lack of a clear definition of "unauthorized practice of law", lack of funding or staff to support the prosecution and a lower prioritization of prosecution of unauthorized practice of law because it tends to affect only one or two areas of practice.

In the last several years, Michigan CPA firms have entered into many businesses not generally associated with accounting firms. These business areas include investment advice, brokerage services, estate/trust settlement services, computer consulting, credit collection services, and legal services. These legal services include not only the preparation of estate planning documents but also a wide array of business and corporate documents.

RECOMMENDATIONS

We make the following recommendations for the Commissions’ consideration.

  1. The Commission and the American Bar Association should encourage State Bar Associations to prosecute non lawyer’s who are engaged in the unauthorized practice of law. Beyond encouragement, the ABA should provide coordinated litigation support services that are badly needed by underfunded State Bar Associations, which do not have procedures in place to challenge the unauthorized practice of law.
  2. The American Bar Association should take the lead in organizing the passage of state legislation that would better define what services are included in "legal services" relative to the unauthorized practice of law. Our Council believes that legal services should include will and trust drafting, business and corporate document drafting, analysis of tax legal issues and the representation of clients in judicial and administrative proceedings. We firmly believe that only licensed lawyers should be allowed to provide these legal services.
  3. Our Council believes the Rules of Professional Conduct should be modified to allow for multidisciplinary practice between the professions. If lawyers are partnered or are in association with other professionals while providing legal services, we believe that only lawyers should supervise other lawyers in the providing of legal services to clients. Our concern is that a lawyer who provides legal services in a multidisciplinary practice may report to a non-lawyer senior partner who dictates the firm’s position and policy. In this situation, the lawyer may not be free to represent the best interest of the client. The lawyer’s only duty under the Rule of Professional Conduct should be to his or her client. The imposition of an accounting firm management structure with non-lawyers compromises that duty.
  4. We believe the Rules of Professional Conduct should require a lawyer employed in a multidisciplinary practice to disclose to the client potential conflicts of interest between the client and the interests of the multidisciplinary firm. The rules should apply not only to lawyers at accounting and financial firms, but also to lawyers at law firms who also provide trust and financial services.
  5. We recommend that the Rules of Professional Conduct clearly state that they apply to all lawyers wherever they practice, in a traditional law firm or in a multidisciplinary firm. Rules concerning conflicts of interest and client confidentiality are extremely important and must be applied even handedly to all lawyers regardless of where they practice. Accounting firms, particularly the national "Big 5" accounting firms may very well have conflicting purposes with nationwide clients. These conflicts of interest can compromise the ability of lawyers on their staffs to fairly represent clients. For example, in the 1980’s, the national accounting firms represented both limited partnership syndicators and individual limited partner investors. Traditionally the accounting profession has had a duty of independence, not a duty of absolute loyalty and confidentiality to a client. We believe it will be difficult to square these conflicting duties for lawyers working in a large public accounting firm.
  6. We recommend the American Bar Association and State Bar Associations join in a public relations campaign to communicate with the public about traditional areas of the law which do not involve litigation. If a public survey were undertaken, we believe those tax lawyers, estate-planning lawyers, and business law lawyers would have a high degree of public respect. Public service ads emphasizing the non-litigation areas of the practice of law would increase the public’s confidence in the legal system and what lawyers do.

In conclusion, we believe your Commission’s work should be guided by the principle that ethical rules and the unauthorized practice of law statutes are intended to protect the public. We appreciate being able to lend our collective voice to the difficult talk faced by your Commission.

Very truly yours,

Brian V. Howe, Chairperson
Probate and Estate Planning Section Council
State Bar of Michigan

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