October 05, 2011

The Bar Association of Metropolitan St. Louis Report of the Multidisciplinary Practice Task Force - Center for Professional Responsibility

The Bar Association of Metropolitan St. Louis

Report of the Multidisciplinary Practice Task Force

(adopted by the Board of Governors, April 8, 2000)

One year ago, President Carol Chazen Friedman appointed this Task Force to study the recommendations made by the ABA Commission appointed by ABA President Philip A. Anderson, and in turn make recommendations to the Bar Association of Metropolitan St. Louis (BAMSL) as to the position this bar should take.

This Task Force held two well-publicized open membership meetings to discuss the issues raised by the ABA Commission. The meetings were not as well attended as was hoped considering the importance of the issues raised by the Commission Report to the future practice of law. It is believed that many members of this Association do not yet see how the adoption of a rule permitting the splitting of fees by lawyers with other professionals could affect their day to day practice.

When the Commission’s recommendations were submitted to the ABA House of Delegates in August, 1999, there was a spirited debate on the floor of the House of Delegates. The recommendations of the Commission were overwhelmingly defeated by a Resolution of the Florida Bar to the effect that no changes should be made in the Rules of Professional Conduct relating to the splitting of fees unless and until it could be shown that 1) a change in the rule is needed, and 2) that the changes made would preserve the core values of the legal profession.

Some may have felt that this would deter the Commission from going forward with its proposals relating to multi-disciplinary practice. What happened, however, was that the Commission took this as a mandate to continue its work and try to satisfy objections made to its earlier proposal. At a Town Hall meeting in Dallas in February, the Commission admitted that its earlier proposal was flawed and that objections made to it were well taken. It indicated that it had held further hearings and would present a Revised Proposal at the Annual Meeting of the ABA in New York in July.

In the meantime, the Chair of the Task Force, and some of its members, have attended meetings of Sections and Committees of BAMSL as well as other lawyer groups to discuss multi-disciplinary practice. Some members of the Task Force have also met with the MoBar Task Force studying the same issues with somewhat more depth because of better financing. Members of the Task Force and other BAMSL members have participated in a Q-Sort study by MoBar and have reported that just as in BAMSL, MoBar lawyers are split on the issue of whether or not multi-disciplinary practice should be permitted in Missouri.

Based upon the MDP Forums conducted by the Task Force, the personal experience of Task Force members, and a review of materials from the ABA and other State and Local Bar Associations, the Task Force has concluded that there is a substantial split among lawyers favoring and opposing changing the rules to permit multi-disciplinary practice. Lawyers generally, however, want the present rules relating to unauthorized practice of law by non-lawyers to be enforced.

There is a sense that outside pressures may force the adoption of some kind of rule regulating multi-disciplinary practice. The Task Force recognizes the existence of non-lawyer controlled organizations employing lawyers and circumventing the present rules by providing legal services to end user customers of the organization, and not just to their employer. The existence and recognition of the problem does not decide that MDPs are the way to solve the problem. Because of the lack of hard data to show the feelings of the membership, the Task Force will not take a position either supporting or rejecting MDPs as the way to solve the problem. Nevertheless, there appears to be a need to express the views of BAMSL to the Commission and to the ABA House of Delegates as to the nature of the "core values" we feel should be included in any rule promulgated to regulate multi-disciplinary practice, and time is now of the essence.

On Thursday, March 23, 2000 the ABA Commission filed its Revised Draft Recommendations for comment by State and Local Bar Associations. It indicates that it will submit its report to House of Delegates members on April 15, 2000, but seeks comments now. In order to have any impact on this Report, BAMSL must act immediately.

This Task Force believes that even those who favor MDP recognize the need to preserve the core values of the legal profession, and the need for some regulation of MDPs. The Task Force recommends to the Board of Governors of BAMSL that it adopt five principles that any change of rules permitting MDPs should contain. They are as follows:

  1. The highest Court of each State must continue to regulate and control the practice of law. Nothing should be done that would in any way indicate a willingness to accept regulation by State legislatures.
  2. Any MDP must be owned and controlled by lawyers, i.e. lawyers must own at least 51% in the entity and control and manage the operation of the entity.
  3. A rule that only is directed toward fee sharing is insufficient to deal with the problem of MDPs. A new special rule relating to MDPs should be promulgated. Such a rule should require other professionals to be governed by rules relating to conflict of interest, confidentiality and loyalty.
  4. The rules relating to unauthorized practice must be vigorously enforced. This has not been done in the past, and with new responsibility being placed on Bar counsel, adequate resources must be made available and if necessary, laws changed, to give the bar and attorneys general more authority to enforce these rules.
  5. Any rule authorizing MDPs must be implemented in a manner that protects the public and preserves the core values of the legal profession, including competence, independence of professional judgment, protection of confidential client information, loyalty to the client through the avoidance of conflict of interest, and pro bono publico obligations.

On March 24, 2000 the Philadelphia Bar adopted a recommendation to approve MDPs so long as lawyers are Owners of at least 51% of the MDP. There was dissent to this recommendation. There will no doubt be dissent to our recommendation as well – possibly from both sides of the issue. However, it must be remembered that we are not taking a position for or against MDPs, but trying to outline those core values that should be included in any proposal to approve MDPs and each such proposal will have to be judged on its own merits at that time.

Respectfully submitted,

BAMSL Task Force on MDP
James E. McDaniel, Chair
Richard A. Ahrens
Doreen D. Dodson
Stephen C. Hartnett
Paul W. Kopksky
Maureen M. Miller
David A. Warfield
Diane C. Yu