July 30, 1999
Mr. Arthur Garwin
ABA Commission on Multidisciplinary Practice
541 North Fairbanks Court
Chicago, Illinois 60611
Dear Mr. Garwin:
The American Institute of Certified Public Accountants (AICPA) has been following with interest the work of your Commission. The AICPA is governed by a governing Council much like the House of Delegates in the ABA and an elected Board of Directors which acts in Councils place between meetings of Council. Our Board of Directors has given careful consideration to the recommendations and report recently issued by the Commission, and has adopted the attached resolution on behalf of the AICPA. I ask that you post this transmittal letter, and the attached resolution, on your web site.
As you can see from the resolution, the AICPA commends your recognition of the strong consumer demand for multidisciplinary partnerships between lawyers and others, and your recommendation that the ban on fee sharing be dropped. Our members in public practice have also seen consumer demand for multidisciplinary partnerships, and our rules permit fee sharing between CPAs and others. However, we are greatly troubled by the Commissions proposed definition of the practice of law, and its proposed regulation of multidisciplinary practices, both of which could significantly and adversely impact many of our members.
These issues are very important to our members, and it is in that framework that the Board felt compelled to make its collective views known through the vehicle of the attached resolution.
Recognition of user demand for multidisciplinary practices is a useful starting point. Imposition of the legal rules of conduct, and certification and audit requirements on non-lawyer controlled MDPs, however, effectively creates an insurmountable barrier to the formation of such entities, and so would seem counterproductive. If meaningful change is to come about, the legal profession should work with other professions to develop reasonable and acceptable standards. As the attached resolution demonstrates, we are available to assist you in this regard.
Very truly yours,
Olivia F. Kirtley
Chair of the Board
July 15, 1999
RESOLVED that the AICPA applauds and supports the vision of the American Bar Associations Commission on Multidisciplinary Practices (the "Commission") in recognizing the need to broaden the choices clients have in choosing their professionals and to make available to clients fully integrated multidisciplinary solutions to their problems; and be it
FURTHER RESOLVED that the AICPA Board of Directors supports amendment of the ABA Model Rules to allow lawyers and non-lawyers to form partnerships and share fees with one another; and be it
FURTHER RESOLVED that the AICPA Board of Directors objects to and opposes the regulatory approach to multidisciplinary practices recommended by the Commission. We believe the Commissions approach will have the exact opposite of its desired effect by significantly restricting client choice and impairing the formation of multidisciplinary practices. Specifically:
The AICPA objects to the definition of the practice of law proposed by the Commission. This definition is a dramatic expansion of the current understanding of the practice of law, and captures within its ambit services in particular tax related services that historically and properly have been performed by AICPA members and their firms. Under this new definition, accountants may find themselves suddenly charged with the unauthorized practice of law in areas of their practice which, under federal law, they have specifically been given the right to practice. Additionally, individuals licensed as lawyers, and those who are both lawyers and CPAs, would be regulated as lawyers even though they do not hold themselves out as lawyers and do not create any client expectation that an attorney-client relationship is created. We understand that the Commission based its definition "in great part" on the rule in the District of Columbia, but we take issue with the Commissions exclusions of the exceptions and commentary to the D.C. rule which would have ameliorated much of our concern in this regard.
The AICPA further objects, as clearly inappropriate and overreaching, to the Commissions proposal to unilaterally impose the legal rules of conduct on accounting firms that include lawyers. This in turn has the potential to subject any accounting firm that employs an individual licensed as a lawyer to the rules of the legal profession, including the legal professions rules concerning conflicts of interest and solicitation of clients, for all firm engagements. This would create conflict situations in the same circumstances where none existed before.
The AICPA further objects to the Commissions disregard of the extensive ethical codes applicable to other professionals, including CPAs and to its unilateral imposition of the legal rules of conduct on firms governed by such other ethical codes.
The AICPA further objects to the Commissions proposal that every multidisciplinary practice not controlled by lawyers be subject to an annual certification and audit requirement in every jurisdiction where it delivers legal services (particularly as those services are redefined by the Commission). This requirement has the potential to subject non-lawyer controlled multidisciplinary firms to certification and audit in 50 states. There is no evidence that supports the need for such onerous regulatory oversight. If the ABA concludes that enforcement of the legal professions rules of conduct can only be accomplished by the regulation of firms, the certification and audit requirements should apply to all firms that deliver legal services, including law firms; and be it
FURTHER RESOLVED that the AICPA strongly believes that the Commissions proposal creates significant barriers to the development and operation of multidisciplinary practices and unnecessarily limits consumer choice in the purchase of professional services; and be it
FURTHER RESOLVED that the AICPA welcomes the opportunity to work with the ABA to formulate a workable regulatory framework for multidisciplinary practices.