Oral Testimony of John Kouris, August 1999 - Center for Professional Responsibility

Oral Testimony of John Kouris,

Executive Director of the Defense Research Institute,

Before the

ABA Commission on Multidisciplinary Practice

August 8, 1999

The Executive Director of the Defense Research Institute (DRI), John Kouris, presented the statement of DRI on the Commission proposal for facilitating multidisciplinary practice. He also remarked that this group can speak with direct experience regarding control of their members by and accountability to nonlawyers. It is prohibitive and restrictive upon the independent judgment of those lawyers who are forced to practice in that environment and should not be the basis of what the future practice of the legal profession in the United States should look like. He found it curious that so much of the Commission’s findings and recommendations were based on what is going on in Europe as the United States had rejected the European model over 200 years ago. He recounted an experience he had as chief operating officer of the National Institute of Trial Advocacy (NITA) when he went to Great Britain, that has a bifurcated legal profession, to institute litigation skills training for solicitors who had obtained the rights of audience. He found it curious that the solicitors held the U.S. up as a model; they didn’t talk about how wonderful the European law model was. All the solicitors talked about (were vitally concerned about) was the threat the Big Five (at that time it was the Big Six) posed to their future as independent practitioners. He mentioned conversation with the Secretary General of a European product liability defense bar, a DRI member, who thought the Bar in France, where there are MDPs, is universally opposed to them because of the negative effect MDPs have on private practitioners in that country. He found an earlier speaker’s testimony that the principle reason that U. S. attorneys oppose the MDP model is nothing more than economic protectionism - they want to protect their fee basis - particularly contradictory because the entire issue of the MDP is based on economics. He wondered what is going to happen to the pro bono activities of lawyers if they are controlled by the Big Five, as the accounting firms are concerned with nothing more than the bottom line. He ventured to say that the impact on pro bono activities by the Bar would be most negative. He made two comments in closing. One, referencing the Swedish bar president he opined that it would be a horrible mistake for the U.S. to base its model of the future of legal practice upon a country where every barber, butcher, and truck driver can practice law alongside lawyers because there is no unauthorized practice of law (the case in Sweden as well as other countries). Second, he had a different view from Dean Powell’s quote in a recent issue of the American Bar Association journal that one of his colleagues indicated that there should be MDPs because accountants are going to ‘eat our lunch’. "I don’t think the accountants are going to eat our lunch. When MDP comes around in this country, accountants are going to be telling us when to take lunch, where to take lunch, and whether or not we can take lunch at all. And while that might be humorous, it is very serious…I want to, in closing, just dispute one remark of the young woman from Sweden. MDP isn’t here, it’s there and that is where it should stay."

Dean Powell put the quote that was referenced in a fuller context. He said the ABA Journal comment was that the Commission had come to understand that lawyers are quite used to working in a regulated environment and that they are quite capable of protecting themselves in the marketplace. The driving consideration, rather than economics, was delivery of services to clients, and doing that in a way which is consistent with protection of core values - confidentiality, prohibitions against conflict of interest and service to the profession.