Commission on Multidisciplinary Practice

House Of Delegates Annual Meeting 7/11/00 Transcript--MDP

UNEDITED TRANSCRIPT
--NOT FOR PUBLICATION—

Not to be Reproduced or Quoted

WITHOUT AUTHORITY OF THE
BOARD OF GOVERNORS
of the
AMERICAN BAR ASSOCIATION

HOUSE OF DELEGATES ANNUAL MEETING 7/11/00
TRANSCRIPT--MDP

ROBERT J. GREY, JR.: Members of the House, we will move to special item that has been specially calendared on multidisciplinary practice. We’re going to work through this in an orderly fashion. Ask you to give the respect of those speaking your utmost attention. We’re going to start with Report 10F. The Chair recognizes Robert MacCrate, a former President of this Association from New York. Mr. MacCrate?

ROBERT MacCRATE: Chair Grey, fellow delegates, I move approval of Recommendation 10F revised as of July 11, 2000, that is on the table before you this morning. This is the--.

ROBERT J. GREY, JR.: Whoa, whoa.

JACK B. MIDDLETON: Second.

ROBERT J. GREY, JR.: Moved and seconded. Mr. MacCrate?

ROBERT MacCRATE: Thank you. This is the consensus resolution of Florida, Illinois, New Jersey, New York and Ohio, and of various other co-sponsors. Today’s revisions are a result of friendly amendments from Robert Hirshon, A.P. Carlton, TIPS and Ethics 2000. We move Recommendation 10F as a comprehensive response by the American Bar Association to the issue of multidisciplinary practice, which has been before us for more than two years. Discussion and study will continue, but with a clear delineation of Association policy in the principles contained in this Recommendation. These principles set forth in the first resolved paragraph include an affirmation of five enumerated core values. An affirmation that lawyers are subject in each jurisdiction to the law governing lawyers. That the law governing lawyers was developed to protect the public interest and to preserve the core values that are essential to the proper functioning of the justice system. That entities charged with attorney discipline should reaffirm their commitment to enforcing their respective laws governing lawyers. That to the extent necessary, each jurisdiction should reevaluate and refine the definition of the practice of law. Sixth, that jurisdictions should retain and enforce laws that generally bar the practice of law by entities other than law firms. Seven, that sharing of legal fees with non-lawyers and ownership and control of the practice of law by non-lawyers are inconsistent with the core values of the profession. Finally, that the law that prohibits lawyers from sharing fees with non-lawyers and from transferring ownership or control over entities practicing law should not be revised. The first further resolved paragraph directs the Association’s Committee on Ethics and Professional Responsibility to undertake a review of the Model Rules and recommend to the House such amendments as are necessary to assure safeguards in the rules relating to strategic alliances and contractual relationships with non-legal professional service providers that are consistent with the statement of principles in the Recommendation. The second further resolved paragraph provides that in jurisdictions that permit lawyers and law firms to own and operate non-legal businesses, no non-lawyer or non-legal entity involved in providing those services should own or control the practice of law by the lawyer or firm or be permitted to direct or regulate professional judgment in the rendering of legal services. The final further resolved paragraph provides that the Association’s Commission on Multidisciplinary Practice be discharged with the American Bar Association’s gratitude for its hard work and commendation for its substantial contribution to the legal profession. In the middle of this, my 52 nd year as a lawyer, I am profoundly grateful to have the privilege of laying before you this consensus resolution that is the joint product of so many who share with me a commitment to the core values of our profession. The Recommendation before you permits the American Bar Association to respond affirmatively to the MDP challenge in a principled manner, offering guidance to lawyers and law firms in how to maintain a single public profession of law, bound together by shared learning, acquired skills and professed values. I ask your approval.

ROBERT J. GREY, JR.: Thank you, Mr. MacCrate. (applause) The Chair recognizes Robert Keatinge, Colorado Bar Association, for the purposes of a motion.

ROBERT R. KEATINGE: Thank you, Mr. Chair. I rise to move the substitution of Report 10J for Report 10F. And to speak to this motion, I ask Dale Harris.

JACK B. MIDDLETON: It’s been moved and seconded. The Chair recognizes Dale Harris, President of the Colorado Bar Association, as the presenter of the substitute motion 10J for 10F. Mr. Harris?

DALE R. HARRIS: Thank you, Mr. Chairman. Ladies and gentlemen of the House, my name is Dale Harris. I’m President of the Colorado Bar Association and Co-Chair of the Colorado and Denver Bar Association’s Task Force on Multidisciplinary Practice. I want to thank you for the opportunity to address this body in support of the motion to substitute and in favor of 10J. So that you know where I’m coming from, the Colorado Bar Association and the Denver Bar Association Boards of Governors approved in concept MDPs, provided that they be done in a way to protect the public interest and preserve our core values. And they directed our Task Force to continue its work to address specific rule changes that might be adopted to meet those principles. With permission of the Chair, I would like to read the short Resolution 10J. The first paragraph says, Resolved, that the American Bar Association take no actions that in any way discourage further discussion of multidisciplinary practice until a more substantial number of state and local bar associations and ABA entities currently studying MDP have had an opportunity to conclude their studies and the members of the House of Delegates have had an opportunity to consider those reports. Second paragraph, Further Resolved, that the subject of MDP be included within the jurisdiction of the ABA Committee on Research Into the Future of the Legal Profession. The Futures Committee which President Barnett is planning to establish or has established. We make this motion, ladies and gentlemen, and offer Resolution 10J because we believe 10F, particularly paragraphs 7 and 8, of 10F would indeed discourage further discussion of this issue, at least at the ABA. Indeed, we believe that 10F would and is intended, in the words of one of the reports submitted with it, to bring the current round of debate on the subject of multidisciplinary practice to a close. Ladies and gentlemen, there are at least three reasons why the discussion should not be brought to a close at this time. First, it’s premature for the ABA to declare that MDPs either are or are not in the public interest. Second, we believe that much of the current discussion about this subject has centered on criticisms directed toward the MDP Commission itself. And this has distracted from reasoned deliberation of the merits of the issue. Third, we believe that MDP is only one of several interrelated issues concerning the way we are going to deliver legal services in the future, in the 21 st century. And MDP should continue to be considered, along with the other issues in this larger context. We think our Resolution accomplishes and addresses all these issues. Let me come back to each one briefly. Why is it premature to end the discussion at this time? Last year in Atlanta, this House adopted the Florida resolution calling for no change in our rules unless and until further study showed that it would be in the public interest and that we could protect our core values. The proponent of that resolution, Mr. Hill, when asked who was going to do the study said, "This study would be made not only by the MDP Commission, but by the various state bars and Sections and every other entity that exists in this Association." The action in Atlanta sent a wake up call across the country to bar associations everywhere. It certainly did in Colorado. Virtually all state and large metropolitan bars undertook to form a commission or a committee and begin work on the issue. And they have been working on the issue. But ladies and gentlemen, that work is not complete. You have before you a report, I think, that was laid at your places, showing that of those state and local bars who have undertaken work in this area, approximately an even number of the committees who have reported out come out in favor of MDP in some fashions. And the same number come out against MDP in almost any form. Even those committees who have reported have widely divergent views on many of the underlying issues, such as lawyer control versus non-lawyer control, which professions should be included or not included if MDPs were recognized. Even such points as whether or not this is just a lawyer/accountant debate or whether it’s an issue affecting lawyers in small towns and small firms, in rural communities across Colorado and across America. The point is that as of today, there is no consensus on MDP, even among the groups who have reported. More importantly, however, some 23 or so jurisdictions who are studying this issue have not yet been heard from. Included among those are such jurisdictions as the District of Columbia and California and perhaps Texas, perhaps the three largest bars in this country. With so many interested voices not yet heard from and with such divergent views expressed by those who have reported out, it is our view that it is too early to call the question and declare the discussion closed at the ABA. These voices deserve to be heard. It is no answer to say they’ve had enough time to do the work, to wrestle with this issue. After all, many of them didn’t get started until last fall or winter. And these are not easy issues. The ABA has been working on them for two years. These jurisdictions want to have and should have a chance to come to a considered conclusion about this, without being told, "Sorry, it’s too late. The debate is over on a national level." To my second point, that is that the Commission itself seems to have become a flash point in this debate. Emotions seem to have been generated about matters of process and procedure. And this is bound to have detracted from consideration of this issue on its merits. Decisions such as this should not be decided in an emotional atmosphere of that kind. And Resolution 10J would remove this distraction by asking that the subject of MDP be included in the jurisdiction of the new Futures Committee. That leads me to my final point and third point. The MDP question is just one of several challenges facing the legal profession as we enter the 21 st century. Winds of change are swirling all around us. Multijurisdictional practice, the loss of public trust and confidence in our profession, the impact of technology, particularly the Internet, all these issues loom large on our horizon. All these issues raise questions about how legal services are going to be delivered by our profession in the 21 st century. And they are all related. We understand that the Futures Committee intends to address these and other issues on the future of our profession. MDP should be included in that study. Other important organizations have recognized how these issues do relate to one another and have called for a coordinated review of them. For example, in just the past week or so, I understand the National Organization of Bar Councils, the leaders of the lawyer regulatory agencies, have made a recommendation that the National Conference of Chief Justices work with the ABA and work with the states to formulate a uniform approach to MDP, multijurisdictional practice, Internet usage, interstate advertising, reciprocal discipline and licensing. So our resolution asks that MDP be included with all of these other issues in the work of that Committee. In conclusion, Mr. Chair, I think we all recognize how difficult these issues are. We all recognize they raise fundamental questions about what it means to be a lawyer in the 21 st century. But that’s all the more reason why we should not rush to judgment. That’s all the more reason to hear from the many constituencies who are interested and who have a stake in what we do. All the more reason why the national leadership of our profession should not take itself out of the game now. The ABA’s leadership on this issue--.

ROBERT J. GREY, JR.: Thank you, Mr. Harris.

DALE R. HARRIS: --will be needed more than ever in the future. Thank you very much.

ROBERT J. GREY, JR.: You’re quite welcome. The Chair recognizes Tom Bolt of the Virgin Islands for the purposes of an amendment.

TOM BOLT: Mr. Chair, I will not delay the House and do not take a position with regard to Report 10J. But if it is to pass, I would ask that on line 6, after "state," we insert, "and territorial."

JACK B. MIDDLETON: Second. (applause)

ROBERT J. GREY, JR.: Moved and seconded. All in favor, say aye. Opposed no. It’s adopted. The Chair recognizes a member of the Board of Governors, Ben Hill, from Florida. Governor Hill, in opposition to 10J.

BENJAMIN H. HILL III: Thank you, Mr. Chair. I rise in opposition to the proposal by the Colorado Bar. And in speaking in opposition, I want to give the House just a quick summary of where we are and why we are where we are. You’ll recall that last August, the Commission came to us with a recommendation that this body embrace MDPs. You’ll recall that that was debated vigorously on the floor of the House. And Florida introduced a resolution that essentially said that there should be no change to our rules, unless in the public interest, it can be demonstrated that a change can occur without compromising our core values. And the resolution called upon further study. Since August of last year, there has indeed been further study. That study resulted in the presentation to this body of several resolutions, all of which you have in front of you. The study included many, many states and many organizations and many entities who considered what MDPs were and what the consequences of sharing fees with non-lawyers were. The resolutions that came from the studies and the studies of Mr. MacCrate, the 388 page exhaustive study, the study of the Florida Bar with a pro and a con position papers that were rendered. And a vote by the Florida Bar Board of Governors of 44 to 1 against MDPs. The studies culminated in the resolutions that are before you in the form of 10D, the Florida Bar Resolution; 10E, the Ohio resolution; and 10F, a joint resolution from Illinois, New Jersey and New York. Those studies in the form of resolutions were then presented to your Board of Governors at its meeting last week. The Board of Governors did not have Revised 10F that’s in front of you, so the Board of Governors has not had an opportunity to vote on Revised 10F that’s in front of you today. But the Board did consider the Florida Resolution 10D, which is against MDPs and sharing fees. And the Board voted to support that Resolution. The Board considered the Ohio Resolution which is against MDPs, and the Board voted to support that resolution. The Board also considered the then existing 10F, which was a three state proposal, and the Board voted to approve that resolution. The Board considered Report 117 and did not approve 117, which is the current recommendation of the Commission. There was also a motion to defer presented to the Board. And the Board defeated that motion. Since that time, as Mr. MacCrate has advised, there has been an attempt to bring together the three resolutions, 10D, 10E and 10F, so that they fairly state the position of this Association. We believe that it does bring together those things that this Association stands for. We believe that it puts this Association in the middle of the debate, the national debate on MDPs. And it affirmatively asserts that this body, that the ABA stands firmly in favor of protecting the public interest by adhering to our core values. I would speak against the resolution and urge that we not defer this. That we take a stand so that we can get involved and we can state our position with some certainty that to those who have any doubt about what our profession stands for. Thank you. (applause)

ROBERT J. GREY, JR.: Thank you, Mr. Hill. The Chair recognizes Donald B. Hilliker, Chair of the Standing Committee on Ethics and Professional Responsibility, from Illinois. Mr. Hilliker?

DONALD B. HILLIKER: Mr. Chairman, members of the House of Delegates, I appreciate the opportunity to speak to you this morning on this most important issue. Many of us believe that the issue of multidisciplinary practice is probably the most important one that has faced our profession in the last maybe 50 or 100 years. And as I understand it, the thought has been to give state and local bar associations time to present their views on what is a very complex issue. Recently, the New York State Bar Association presented a proposal, supported by an almost 400 page report, addressing the issues very comprehensively. There has been hard and good work done by other state bars, including Florida, Ohio, New Jersey and Illinois, all of who have made proposals on the issue. The ABA’s own Commission on Multidisciplinary Practice recently presented its analysis in a second report, reflecting over two years of study. The various reports and proposals simply do not reflect a consensus. And there are a great number of jurisdictions still considering the issue. Many state bars, as I understand it, will be meeting in the coming months and will be considering the issue. We simply should give this process the opportunity to be completed, so that possibly as an Association and as a profession we can come to a broad consensus and recommend rules that have a strong chance of acceptance by most all jurisdictions. During the coming months, the Standing Committee on Ethics and Professional Responsibility would be happy to work with any group to develop rules of conduct, to implement whatever proposals any group wants to present to the House of Delegates. I urge also that groups consulting with the Standing Committee on Discipline, to address the considerable enforcement issues that are presented by MDP. With the benefit of the thinking of all of the interested jurisdictions, and proposals that are supported by implementing rules, the House can address this most important issue one time and in a comprehensive manner. Thus, we urge deferral for an issue that is the most important to face our profession in many years. A few more months devoted to completing the process now underway is in the best long term interest of the Association and the profession. Thank you. (applause)

ROBERT J. GREY, JR.: Thank you, Mr. Hilliker. The Chair recognizes Lawrence Fox, State Bar Delegate, from Pennsylvania. Mr. Fox, to speak in opposition.

LAWRENCE JOSEPH FOX: And to think I recommended that Don Hilliker go onto the Ethics Committee. (laughter) Who knew? A year ago, we stood here and we were told by my great friend, Sherwin Simmons, that the train was leaving the station. That we had to act quickly. That events were outrunning us. And I believed him. But now, we are asked to slow down. I submit, ladies and gentlemen of this great House, that we cannot wait one more day. So long as Rule 5.4, our rule governing the sharing of fees with non-lawyers remains in play. As long as it remains in doubt that we are committed to our rules governing conflicts of interest, our rules governing confidentiality, our rules governing professional independence. Those who would undermine them will take comfort from that. And they will continue developments like new law firms called McKee Nelson Ernst & Young. The first time we’ve ever had a law firm with two dead white males who were never lawyers in the name of the firm. (laughter) We had a Commission, we have a Commission. That Commission includes some of the best minds we know. And many of my heroes and heroines are on that Commission. Carolyn Lamm, Mary Daily, Geoff Hazard, Burnele Powell, my true mentor, Bob Mundheim from the Penn Law School, Sherwin Simmons, one of the most thoughtful, dedicated professionals this world knows. They have spent two years. They have held hearings. They have met endlessly. Sherwin and I have debated 13 times. They launched two different proposals, one last year and one this year. And sometimes when you look at the evidence, you can draw the inference that the conclusion is inescapable. That if this group could not come up with a way to permit MDPs and compromise 5.4, it cannot be done. Now, maybe they don’t have a monopoly on brilliance. But they are a remarkable group. And they have spent an enormous amount of time. And as I told them when I first met before them, I do not believe that you can come up with a substitute for maintaining professional independence other than the Rule 5.4. So today is the day to adopt this resolution. One year ago today, I told you I had a nightmare. That the American Bar Association had become a section of the multidisciplinary practice association and you could find us off in a corner, marginalized completely. Well, it’s interesting how sort of life imitates art. Not here in the profession, thank God, but the AMA held their meeting after ours. And two things happened at the AMA meeting. One, they agreed to form a union, because the physicians felt that they did not have any independence anymore. And two, they made their number one legislative priority, ladies and gentlemen, a Patient’s Bill of Rights. We have a client bill of rights. It’s our Rules of Professional Conduct. And today is the day to reaffirm that. And make no mistake for anyone, that as they go forward in every state in the land and think about how we can figure out how we can work with other professions, that they don’t own us and we don’t own them. And so let all the thinking go forward, but let it go from the platform that our rules are sound. That our rules should be upheld. And let some of the thinking go into figuring out what we’re going to do about the civil disobedience of so many lawyers who are not practicing law, but leaving law firms on Friday evening and showing up at accounting firms on Monday morning, doing the exact same thing for the exact same clients, but not practicing law. Thank you.

ROBERT J. GREY, JR.: Thank you. (applause) The Chair recognizes the President-Elect of the Association from Florida, Martha Barnett. President Barnett?

MARTHA W. BARNETT: Thank you, Mr. Chair. I recognize that there is a strong sense of urgency that exists in this House today. Urgency to do something and to act. That same sense of urgency existed a year ago, as you have heard. And I, with many of you, supported the resolution of Florida to defer the recommendations of the MDP Commission, because there had not been study by the state and local bars and lawyers around this country. I’ve often said our friends in the accounting profession did us a great favor. They woke a sleeping giant. And that giant, which is the legal profession of this country, is now engaged in the process of doing what we do best – gathering facts and fashioning solutions. I rise to speak in favor of deferral for one reason. I personally have great concerns about multidisciplinary practices. I have no concerns about the universal commitment of this Association to the independence of the profession and the lawyer and the other core values. But I rise to speak for one reason. And that is out of respect for our colleagues in this country who are diligently working and trying to understand the implications that this has for them, for their personal practices, for the profession, and for their future. I’m privileged to travel around the country on your behalf. And during the last year, I have visited with numerous state and local bars. And I can tell you from personal, first hand observations, they are working hard. They are trying to come to grips with these issues in a responsible way. The resolutions before you are responsible. But they’re premature. We should respect our colleagues and give them time. Remember as you think about deferral, Rule 5.4 prohibits non-lawyer partnerships. It prohibits fee splitting. It prohibits non-lawyer ownership of law firms. Everything that we are talking about trying to put into these resolutions is already covered by our Rules of Professional Responsibility. Certainly that is protection for us. And before we act to change that, we should allow those of us who have to live with it to have the time and opportunity to have a uniform, universal consensus. Thank you. (applause)

ROBERT J. GREY, JR.: Thank you. The Chair recognizes A.P. Carlton, a former Chair of the House of Delegates from North Carolina, to speak in opposition. Mr. Carlton?

ALFRED P. CARLTON, JR.: Mr. Chair, members of this House, I rise to urge you to vote no on 10J. And I will be brief. Its adoption would have the effect of deferring 10F, which I support. It’s time to put this one away, folks. 10F puts the issue in the context and the place it belongs. My amendment to 10F, which was incorporated into the draft before you, accomplishes what this proposal seeks procedurally. It requires, if adopted, the Standing Committee on Ethics and Professional Responsibility and Ethics 2000 to consult with and seek the informed opinion of state and local bars who are studying this issue. Thus, 10F will not end the discussion. It is true, over 40 state and local bars continue to study the issue. The issue will be with us for a long time. 10F, while setting forth our philosophical lodestars does not, in fact, require what 10J calls for. 10F does not say sorry, it’s too late. What it does say it’s let’s drive a nail and let’s go forward together. Yes, with state and local bar input. Let’s get on with this robust debate. But let’s do it from our platform and not someone else’s. I urge you to vote no on 10J and adopt 10F. Thank you very much. (applause)

ROBERT J. GREY, JR.: Ladies and gentlemen, I’ve heard the question. It’s been called. Before I take a vote on that, let me, because so many of us have spent so much time on this, I’d like to recognize those that have filed salmon slips in support and opposition to 10J, so you will know where your colleagues stand on this issue. And then I will entertain a call on the question. In support of 10J I have salmon slips filed by Mark Tuft, state delegate, California; Evan Davis, delegate Association of the Bar of the City of New York; Philip S. Anderson, Past President of this Association from Arkansas; John Nields from the District of Columbia Bar; Carolyn B. Lamm, the D.C. Bar delegate; Peter Langrock, state delegate, Vermont; Tom Fitzpatrick, Board of Governors, Washington; Sherwin Simmons, ABA Commission on Multidisciplinary Practice from Florida; Clarence W. Walker, member of the Board of Governors, from North Carolina; Joanne Garvey, a member of the Board of Governors, from California; Mark Harrison, state bar delegate, Arizona; Jim Holden, Section of Taxation, District of Columbia; Hugh Chaviano, Hispanic National Bar Association from Illinois; Joseph Condo, from the State Bar of Virginia; Jon Stafsholt, state bar delegate, Minnesota; Mary Ryan, Boston Bar Association. In opposition, Jay Foonberg, delegate-at-large, California; Mary Trapp, state bar delegate, Ohio; Tracy Giles, member of the Board of Governors, from Virginia; Sharon Gerstman, Erie County Bar Association; Darrell Jordan, state bar delegate, Texas; Jack Dunbar, state bar delegate, Mississippi; John Bouma, member of the Board of Governors, from Arizona; Thomas Rice, state bar delegate, New York; John Pickering, Senior Lawyers Division, of the District of Columbia; Jim McDaniel, member of the Board of Governors, from Missouri; Jerome Shestack, former President of this Association, from Pennsylvania; Saul Wolfe, state delegate, New Jersey; Stephen Zack, Florida state delegate; Gary Johnson, state bar delegate, Illinois; Ramon Mulrutt from Barcelona, Spain; Cheryl Niro, state bar delegate, Illinois; Edith Osman, state bar delegate, Florida; Herman Russomanno, state bar delegate, Florida; John Bracken, State Bar Association of New York; Leslie Jacobs, state delegate, Ohio; Michael Prigoff, state bar delegate, New Jersey; Steven Cain; Robert MacCrate, a former President of this Association; Diane Yu, Asian Pacific Bar Association. And those are the candidates who have – well, they’re not candidates. (laughter) I got excited. They are the members who have filed in support and opposition of 10J. The question has been called. All in favor of calling the question, say aye. Opposed no. The question has been properly called. Yes?

DUKE W. THOMAS: Just so I understand--.

ROBERT J. GREY, JR.: If the delegate would--?

DUKE W. THOMAS: I’m sorry, Duke Thomas, delegate from Ohio. Just so I understand, it’s been stated that we are voting on a motion to defer. As I understand it, the present question before the House is to substitute 10J for the report that is before us. If that motion carries, we would then move to debate of 10J, is that – if it fails, we would continue to debate 10F?

ROBERT J. GREY, JR.: That’s correct.

DUKE W. THOMAS: Is that where we are?

ROBERT J. GREY, JR.: That’s correct, Mr. Thomas. That’s correct.

DUKE W. THOMAS: Thank you.

ROBERT J. GREY, JR.: You’re quite welcome. All right. Well, let me state it. We are voting on the substitute. If the substitute passes, then we have precluded any other debate on this matter. If the substitute fails, the main motion will then be before the House on 10F. Let me suggest that we recognize that we have called the question. You know that the presenters have an opportunity to close. So Mr. Harris, two minutes to close, if you choose?

DALE R. HARRIS: Point of inquiry.

ROBERT J. GREY, JR.: Just a moment.

DALE R. HARRIS: I believe the motion was to substitute 10J for 10F, not to vote in favor of 10J. Not to vote in favor of 10F.

ROBERT J. GREY, JR.: That’s correct.

DALE R. HARRIS: Okay. So we’re not voting in favor of – I mean, because I don’t like some of 10J and I want to talk about it.

ROBERT J. GREY, JR.: We have voted – we called the question.

DALE R. HARRIS: The question on the motion to substitute--.

ROBERT J. GREY, JR.: Has been called.

DALE R. HARRIS: We have a motion to substitute.

ROBERT J. GREY, JR.: That’s right.

DALE R. HARRIS: For discussion, okay.

ROBERT J. GREY, JR.: 10J is on the floor.

JACK B. MIDDLETON: As to whether it’s on the floor.

ROBERT J. GREY, JR.: That’s correct. Substitute is on the floor, if we pass this. Right to close. The Chair recognizes Joe Condo. Mr. Condo, you have two minutes to close.

JOSEPH ANTHONY CONDO: Thank you, Chair Grey. Good morning, ladies and gentlemen. My bar has not yet taken a position, so I do not speak for the Virginia State Bar. Rather, I speak as an individual lawyer of almost 30 years practice and a member of the House, who is devoted to this profession and to its independence. And I am proud to make my first remarks as a member of the House of Delegates in support of 10J. And I am proud to be able to close our presentation. I will close with some questions and a vision. The first question is, why are we in such a hurry to put MDP in an airtight container, lock it up and put it on the back of the shelf? Some say we’ve been debating this for two years, it’s time to stop. Others say this is messier than we expected, it doesn’t look good. I say this is the most important challenge to our profession in many of our lifetimes. It’s a very complex issue. It involves not only state bars and local bars, but state supreme courts, bar council, legislatures. Two years is the blink of an eye if you consider the far reaching consequences of fragmented action or none at all. We owe it to the profession, our constituents and our future colleagues to take the time to do the right thing. Some 210 Julys ago, several gentlemen assembled in a very hot, very stuffy room in Philadelphia, expecting to be there for a short time. It dragged on through the summer. Thank God no one in that room said, "We’ve been talking too long. This is messier than we expected. Let’s adjourn." The next question is, what are the proponents of 10F afraid of? What is the dire harm that will befall us if we defer action while the debate and individual state studies continue? I’ve waited to hear what that harm is. Whatever it is, it cannot compare to the real harm of the ABA’s essentially leaving the field. Leaving 50 or more fragmented state and local bars to respond to a nationally coordinated effort by the Big Five accounting firms. The next question, what message will we send if we pass 10F? Despite protestations to the contrary--.

ROBERT J. GREY, JR.: Thank you, Mr. Condo, very much. Let me restate this. We are voting on the motion to substitute. Okay? If you pass this motion, 10J is then before you for discussion. No? 10J is. This is the motion to substitute, all right?

FROM THE FLOOR: (inaudible)

ROBERT J. GREY, JR.: No, it does not.

FROM THE FLOOR: (inaudible)

ROBERT J. GREY, JR.: Takes a two-thirds vote to call the question. It has been called.

FROM THE FLOOR: (inaudible)

ROBERT J. GREY, JR.: There’s no record of vote. I’ve taken the vote. The Chair recognizes that the House has adopted a motion to call the question. Now, we’ll use our voting machines on this. Okay, we have called the question. Now, we are voting to substitute 10J. All in favor of substituting 10J, vote yes. Those opposed, vote no. All the members having voted, the voting is closed. 10J fails. (applause) Motion to substitute has failed. We are now back to the main motion.

FROM THE FLOOR: Question.

ROBERT J. GREY, JR.: I appreciate the House’s willingness to move this agenda item along. (laughter) I would ask the House’s indulgence for just a brief moment. We’ve only had a presentation on 10F. I know you feel like you understand it. I’d like to get at least one or two statements on 10F, presenters to make presentations. The House is cognizant of the wish of the House. And so I’d ask you to allow me to recognize Joanne Garvey, a member of the Board of Governors, from California, to speak in opposition to 10F. Well, Miss Garvey, you don’t have to. Miss Garvey, I’m going to wait. And I’m going to recognize Mark Harrison, state bar delegate from Arizona. Pass?

FROM THE FLOOR: Question.

ROBERT J. GREY, JR.: Have a right to close. Waive the right to close. All in favor of calling the question, say aye. Opposed no. The Chair is not in doubt. (laughter) We are now on the question of 10F, the main motion. The Report 10F is before you. We’ll use our machines. All in favor of 10F, press yes. All opposed, press no. All the members having voted, the voting is closed. 10F is adopted. (applause) Thank you very much for your attention. We have other items that we want to cover. Members of the House, let me have your attention, please. The Chair of Rules and Calendar is recognized for a statement. Madam Chair.

HARRIET E. MIERS: We’ve been asked to notify you of late check out information. If you don’t hear or have a question about your hotel check out, Nancy Nobel is over here to your right, my left. And you can ask her any question that you have. But let me read just a few of the hotels. The Hilton, 2:00 or 3:00, depending on I guess when somebody asked. The Essex House at 3:00. Waldorf, 1:30. Warwick, 6:00. Doubletree, 4:00. Marriott Marquis, 2:00. Novatell, 3:00. Palace, 3:00. Sheraton, 2:00. Four Seasons, 1:00. Crown Plaza, 3:00. The Plaza, 1:00. Regal Royale, 3:00. Parker Meridian, 1:00. Inter-Continental, 4:00. Grand Hyatt, 1:00. Day’s Howard Inn, 1:00. And Hilton, we’ve done. That’s it, Mr. Chair.

ROBERT J. GREY, JR.: Madam Chair, thank you. If any members of the House need information with regard to check out, please check with Rules and Calendar. Ladies and gentlemen of the House, can I have your attention, please? We have business to conduct, particularly as it relates to withdrawals on MDP. I’d like your attention so that we might recognize those individuals to withdraw their resolutions. The Chair recognizes – we move to Report 10D, and the Chair recognizes a member of the Board of Governors from Florida, Ben Hill. Mr. Hill? Going to move to Report 10E. Recognize Leslie Jacobs, state delegate of Ohio. Mr. Jacobs?

LESLIE W. JACOBS: Thank you. We’re pleased to withdraw 10E.

ROBERT J. GREY, JR.: 10E is withdrawn. The Chair recognizes state delegate from Florida, Stephen Zack, on Report 10D. Mr. Zack?

STEPHEN N. ZACK: Thank you, Mr. Chair. The State of Florida withdraws 10D.

ROBERT J. GREY, JR.: Report 10I. The Chair recognizes James Sales, Houston Bar Association. Mr. Sales?

JAMES B. SALES: Mr. Chair, on behalf of the Metropolitan Bars of the State of Texas, we withdraw 10I on the basis that the action taken by the House renders that resolution moot. Thank you.

ROBERT J. GREY, JR.: Thank you. The Chair recognizes Robert MacCrate on Report 100, former President of this Association from New York.

ROBERT MacCRATE: I withdraw Report #100. (applause)

ROBERT J. GREY, JR.: We move to Report 117. I recognize Sherwin Simmons, from Texas, Chair of the Commission on MDP. I’m sorry, Florida, from MDP.

SHERWIN P. SIMMONS: Good morning. The Commission withdraws Report 117.

ROBERT J. GREY, JR.: Move to Report 112. Just as a housekeeping matter, since 10J failed as a substitute, it is not in order to be moved again in this House.

UNEDITED TRANSCRIPT
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WITHOUT AUTHORITY OF THE
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