Oral Testimony of Pam H. Schneider,
outgoing Chair of the ABA Section of Real Property, Probate and Trust Law,
Before the American Bar Association
Commission on Multidisciplinary Practice
August 8, 1999
The first witness was Pam H. Schneider, outgoing Chair of the ABA Section of Real Property, Probate and Trust Law, the third largest of the ABA. The Section has its focus in the Real Property and Trust Law areas. Ms Schneider said that both of these areas have seen early and significant inroads by nonlawyers in the practice of law, which are said to be in response to the perceived need for multidisciplinary practices.
The Section Council at this meeting unanimously adopted a resolution supporting the Commission's recommendations, finding they provide an essential starting point for modifying the Model Rules to permit multidisciplinary practices. The Section, however, urged further consideration, consultation and deliberation of the specific structure recommended. Before the Commission Report issued, the Council took a sense-of-the-Council vote and that vote was that multidisciplinary practices should be permitted provided the values of the legal profession including the preservation of independent professional judgment, client loyalty and confidentiality not be diluted or compromised.
That discussion reflected concerns from both ends of the spectrum. For instance, nonlawyers who might control an MDP believe that nonlawyers should not be bound by lawyer's ethics rules, and others believe that the independence of the legal profession cannot be sustained if nonlawyers are permitted to control multidisciplinary practices. The Council believes that the recent growth in the performance by nonlawyers, and lawyers associated with nonlawyers, of services that have traditionally been regarded as legal services necessitates the ABA's development of a framework for altering certain rules of the code of professional responsibility to accommodate the growth of such services in a way that does not dilute the values of the legal profession. As the Council believes that the public served by the Section's members and the practices of many of the Section's lawyers have been directly impacted by the unauthorized and unregulated forms of multidisciplinary practice currently taking place, they applaud the wisdom of the Commission in recommending that such practices be authorized, but carefully regulated. The Council's decision was predicated on the perception of the realities of the marketplace that in order effectively to serve the public and compete against other professional service companies lawyers must have the ability to participate in multidisciplinary practice. That MDP support, however, was unqualifiedly conditioned on the requirement that the framework developed for the implementation of multidisciplinary practice assure protection of the public by the practicing Bar's continued adherence to its core values.
Both the Reporter and the Chair urged Ms. Schneider and members of her Section not only to present helpful suggestions and criticisms but also alternative language. Asked by the Chair what she personally thought might occur if the Commission's recommendation did not pass Ms. Schneider responded that the Council thought that the Commission's recommendation, that the rules be changed, is something that has to take place. They thought the Commission's view was exactly right that it would be naïve to believe that at this point the legal profession could change the world and create a situation where multidisciplinary practices would not de facto exist in this country. The funding and resources aren't there and it is too late to start to enforce the existing rules; if the Commission met 15 years ago then enforcing the rules could be the answer. The Section is comprised of about 25-30% solo and small firm practitioners; however, the leadership has more large firm practitioners, more specialists. The membership is about one third real property specialists, one third probate and trust specialists, and one third people who do both. Her sense is that the membership has not determined that the public at large is clamoring for MDPs but feels it needs this opportunity in order to compete effectively. It is a reactive rather than proactive sentiment.