Remarks to American Bar Association
Special Commission on Multidisciplinary Practice
August 8, 1999Presented by: Delos N. Lutton
U.S. National Vice President, UIA
Reinhart, Boerner, Van Deuren,
Norris & Rieselbach, s.c.
1000 North Water Street
Milwaukee, Wisconsin 53202-3186
414-298-1000Good afternoon, and thank you for the opportunity to offer our perspective. My name is Delos Lutton. I am in private practice in Milwaukee, Wisconsin. I am a member of the ABA and the ABA Section on International Law and Practice as well as the UIA.To begin, let us introduce the UIA to you. The Union Internationale des Avocats, or UIA, is the world's oldest international association of bars, bar associations and law societies, having been founded in Belgium in 1927 and now headquartered in Paris. It now joins 3,000 individual lawyers and 250 collective members (including the ABA) representing several million lawyers from over 100 countries around the world.We (Jacques Leroy, of the Bar of Brussels, Chair of our Committee; Louis Buchman of the Paris Bar; and I) represent the UIA's Committee on MDPs which was formed last September in Nice, France at the behest of the UIA's current President, Steve Hammond of Hughes, Hubbard & Reed in New York City. The Committee was charged with studying the MDP issue and making appropriate recommendations.After the months of study since September, our Committee has unanimously proposed adoption of what we call "UIA-Recommended Minimum Standards for MDPs." Because our Board of Governors has reviewed and commented already on our proposal, it has authorized its public distribution, and copies are available here if anyone wants one. The text will be submitted for approval to our Governing Board and, if approved, will be submitted to our members for adoption at our General Assembly, to be held this year in New Delhi, India in early November.Today we would like to put your Commission's Recommendation in an international context by, first, comparing your Recommendation and our proposal on Minimum Standards, and, second, offering some reflections on why we believe so strongly that prompt action by this issue by the organized bar is not only desirable, but urgently needed to protect our clients' interests.On some other occasion we could tell you why we chose to draft the proposals the way we did - our drafting philosophy, so to speak - and add a number of other important details to our comments. But to stick within our allotted time, we will address only the bare essentials here.First, the comparison: Your recommendation is to change the U.S. rules to permit MDPs in a particular country - the U.S. - subject to conditions which, in our view, would actually strengthen the ethical rules more than they would relax them. Our recommendation is to adopt universal conditions which would apply to MDPs wherever they are permitted. We took no position on whether MDPs should be permitted, because, as an international association, we had to face the reality that MDPs are in fact permitted and exist in many countries. This is an important point and we will return to it later. For now, we want only to emphasize that our proposal does not encourage anyone to adopt MDPs. Instead, it recognizes that they exist and imposes standards to be met in order to preserve the crucial aspects of the attorney-client relationship which have been an integral part of the justice system in advanced societies for many hundreds of years: confidentiality, independence, loyalty, and avoidance of conflicts of interest.These crucial aspects - core values, as they have been called - are much the same as those emphasized in your Recommendation as needing special protection in the context of practice in an MDP. So while we came at the problem from different perspectives, we both arrived at very similar conclusions regarding the key client protections which need to be in place in any jurisdiction that has decided, intentionally or by default, to permit MDPs.Now in the second part of our remarks, we would like to address the urgency issue: Why have you urged prompt adoption of your Recommendation and why is our UIA Committee urging prompt adoption of our Minimum Standards?Two readily observable phenomena are often cited in this debate:
- the growth of large, even giant, consulting firms and large, even giant, law firms;- and the growth of rapid, cheap communication and transportation - the globalization of markets of all kinds.But there is a third phenomenon not often cited in the U.S. debate over MDPs - that is the already rapid spread of MDPs joining lawyers and accountants and other professionals in many large, industrialized advanced societies: Germany, France and Spain to name only a few important examples. In some countries there remains vigorous debate about the legality of some of these moves by consulting firms, but the growth is real, it persists, and it is affecting clients and their lawyers every day in a growing number of arenas. Let's be realistic: If the giant consulting firms see a vacuum, they will fill it.Continuing in the realism vein, let's also face the reality that nonlawyers all over the world, and lawyers and their colleagues practicing in MDPs in many countries, are increasingly offering legal services to their clients everywhere, are aggressively attempting to redefine legal services and the practice of law, and are putting clients at risk by failing to give transparent notice of their status, failing to take the necessary steps to preserve client confidentiality and safeguard the attorney-client privilege, and failing to avoid conflicts of interest in their services.This is the urgency we in our Committee feel: That clients' interests are being compromised while our profession fails to take reasonable steps to reinforce the values our systems of justice rely on for their proper functioning, and while the apparent lack of rules or willingness to enforce them, and the existence of technology like the internet, permit aggressive consultants to ignore national boundaries and solicit customers from whatever location is the most permissive or the most lax.Our response is to recommend the construction of a level playing field - the adoption of clear, universal standards which will give clients what they need, but which will be implemented, in their specifics, uniquely by each country in accordance with that country's unique traditions and legal culture.We do not know whether, or under what conditions, the United States or any other country should permit MDPs. We do suggest that none of the United States, not even California, can build a wall high enough to keep out the internet and all the other methods of human interaction which disregard national boundaries. So the debate over MDPs is not so much whether they should be permitted or not, admittedly an important decision in any jurisdiction, but more importantly what rules can be implemented and enforced which will enjoy a broad consensus among lawyers worldwide and which will, as best may be, even where MDPs exist, preserve the role of the lawyer as the loyal keeper of the clients' confidences, the careful guardian against conflicting interests, the independent champion of the client's cause.Thank you for allowing us to share our view with you today.