October 05, 2011

Summary of the Testimony of Alison Crawley

Before the Multidisciplinary Practice Commission

Alison Crawley, Head of Professional Ethics of the Law Society of England and Wales, made the next presentation. She stated that there is a minimal monopoly of law in the United Kingdom in that only certain kinds of legal services are "reserved" to qualified lawyers. Under the Solicitors Act these "reserved services" are: conveyancing (effect transfer of title in property), conducting litigation and providing advocacy services, and taking out grants of probate (estate administration). As there is no general reservation of legal advice to qualified lawyers there is no UPL statute in the United Kingdom. In relation to conveyancing "qualified lawyers" include notaries and licensed conveyancers, and the 1990 Courts and Legal Services Act in theory (not yet in practice) permits lending institutions to provide conveyancing services directly to the public for reward. In the UK an unqualified person cannot "act as a solicitor". The IBA statement is the part of the discussion that needs to get out to the public rather than a debate between lawyers and accountants. She sees MDPs as inevitable because it is not a big step from where the practice of law is currently. Law firms face no impediment to providing nonlegal services and the nonlaw firms can provide many legal services as consulting is unregulated. Since the mid-1980s solicitors are allowed referral of work from a firm of nonlawyers - estate agents, banks, accountants - and these referral arrangements have allowed price to be bundled. This evolved into the captive firm arrangement with Garrett & Co. in association with Arthur Andersen leading the way. Upon establishing an independent law practice Coopers & Lybrand moved its in-house nonpracticing solicitors into it. PricewaterhouseCoopers now says Arnheim, Tite & Lewis, the affiliated law firm, is as far as they need to go in terms of multidisciplinary practice. Chris Arnheim maintains that the close working relationship the law firm has with PricewaterhouseCoopers doesn’t make them ‘captive’ or a professional service firm operated by accountants, but preserves independence, protects confidentiality and privilege and avoids conflicts.

In the United Kingdom in-house lawyers (even though employed) are considered independent, comparable to the U.S. situation. Apart from the Big Five it is difficult to find client demand for MDPs. The current Labor government would like to see MDPs because of the current financial pressure on high street lawyers, and because MDPs might preserve access to justice. Some solicitors want MDPs because they complain that they are losing competent non-lawyers because they cannot be made partners. The pro-competition stance of the last Government led to lifting the statutory prohibition on solicitors sharing fees with non-solicitors (the Courts and Legal Services Act 1990 removed the statutory prohibition but left the Law Society regulation). Accounting firms in England and Wales are now urging the government to lift the ban on MDPs by Law Society practice rule. Currently six bodies regulate accountants and Public Review Boards are being proposed to oversee public audit standards. The Accountancy bodies have been recommending setting up a Foundation, independent and not owned by the state or the professions, that would be manned by the Stock Exchange, Bank of England or some such reputable types, and they would pick the Public Review Board members. It has been suggested that a similar model could be used for multi-disciplinary practice oversight.

Upon questioning Ms. Crawley indicated that a first step for the U.S. monopoly model might be to consider a law firm grouping that allowed teamwork without fee sharing, that would not challenge confidentiality strictures and would afford a high level of client protection. She mentioned that the Law Society statutes require that indemnity insurance and a compensation fund be computed into the MDP model in the UK. (Dean Powell subsequently asked how the compensation fund of a MDP would be risk rated.) The Linklaters Alliance of European Lawyers was referenced. Problems with legal services by a nonsolicitor were identified in the areas of will writing and immigration. Since the early ‘90s solicitors have been permitted to take into partnership registered foreign lawyers. It was explained that everyone who is qualified as a solicitor is put on the Roll (one may be struck from the Roll for conduct unbefitting a solicitor); however, one must be ‘practicing as a solicitor’ for Law Society regulations such as practice rules, ethics and the compensation fund to apply. Most American lawyers in the UK become registered and practice American law and do not provide "reserved" services. Under the Establishment Directive EU lawyers must pay fees and otherwise establish in the UK.