October 05, 2011

Samuel L. Bufford Re: Commission on Multidisciplinary Practice - Center for Professional Responsibility

Mr. Arthur Garwin
Center for Professional Responsibility
American Bar Association
541 N. Fairbanks Court
Chicago, IL 60611

Re: Commission on Multidisciplinary Practice

Dear Mr. Garwin:

The Los Angeles County Bar Association has requested its Ethics 2000 Liaison Committee to consider the issues related to Multidisciplinary Practice and the work being performed by the ABA Commission on Multidisciplinary Practice. Based on its review, the Committee wishes to provide the following comments to the ABA Commission for its consideration in advance of the preparation of its report to the ABA House of Delegates.

These comments have not been adopted by the Board of Trustees of the Los Angeles County Bar Association. After the Commission issues its report, the Los Angeles County Bar Association's Board of Trustees will take a formal position on the report, and forward its recommendations to the ABA and its House of Delegates.

A great deal has already been written about many of the issues and concerns associated with the concept of MDP. We do not intend to retrace that ground. Instead, we want to focus the ABA Commission's attention on what we believe is an appropriate framework for approaching the legal, regulatory and policy issues raised by MDP.

First, we believe that market forces and demand, competitive business considerations and the drive towards greater efficiency, and the globalization of the economy mean the question is not if there will be MDP's, but rather, when, what their structure will be and how they will be regulated. That process has already started. It is more advanced in European countries, but it is happening in the United States as well. The legal profession can either be an active participant in that dialogue, providing valuable input, or be a bystander, watching the form, structure and regulation of MDP be designed by others. We believe a proactive stance is best for all concerned.

Second, we endorse the principle that the legal profession's central objective should be to contribute to the development of MDP in a way that will maximize the benefit to the consumer of legal services and to protect those "core values", articulated in rules of ethics governing the legal profession, that are designed to protect the consumer and facilitate the effective delivery of legal services in a manner that inspires confidence from the public.

Consequently, we see the role of the legal profession in the MDP debate as acting to insure that MDP's are rationally designed and regulated to achieve those objectives. By identifying the "core values" that are essential to the effective delivery of legal services to the public, and working to insure that those core values are preserved and incorporated into MDP, all stakeholders in the process will benefit.

Identifying and protecting "core values" for the benefit of the public and the consumer of legal services is not, however, as easy as it might seem. On one level, many would agree that the "core values" of the legal profession needing protection include: (a) loyalty and fidelity to the client; (b) protection of confidential and privileged communications between the parties in the relationship; (c) independence of advice; and (d) avoidance of unwaived conflicts of interest.

However, increasing specialization and expansion of the legal profession into new service areas has made it more difficult to assume that these "core values," as expressed through existing ethics rules, should apply universally, or that they are equally desirable in every circumstance where lawyers provide "legal services." In other words, the historic expression of "core values" through regulations or rules that apply across the board to the legal profession under all circumstances may not be best for all consumers of legal services, and might even impede the delivery of effective, quality legal services in some settings. The rules were developed primarily with a litigation model of law practice in mind, and they have frequently not fitted well in other contexts of law practice such as negotiating and documenting transactions. What may be right in the arena of modern litigation may be inefficient, unnecessary or ineffective in another area of practice.

Today, the services of a legal professional can span the disciplines, which is perhaps the most important contributor to the perceived need for and move towards MDP. For example, corporate lawyers involved in mega-mergers or acquisitions work closely with accountants, investment bankers and other professionals to provide the seamless services needed by the client. Estate planning lawyers often need input from accountants, financial planners and professionals from other disciplines. We believe that the ethics rules need reexamination in light of the various types of services being provided as well as the consumers of those services. A client's needs for confidentiality, secrecy, the absence of conflicts of interest, and absolute loyalty may differ depending upon the nature of the work being done, the forum, the sophistication of the client, and many other considerations.

What this means is that the regulation of MDP's is not at all simple. The rules that may be desirable and necessary for an MDP in the area of family law or elder law may vary quite substantially from the rules that consumers of the legal services for an initial public stock offering might deem desirable and efficient.

This is, obviously, not a new debate. Many have argued that the diversity of modern practice has rendered today's ethics rules inflexible and inefficient. The emergence of MDP's may allow the legal profession to address this perception in a positive and constructive manner. If the legal profession engages positively in the MDP process in the manner suggested herein, it should benefit both the legal profession and all consumers of the valuable services provided by lawyers in many varied settings.

Very truly yours,

Samuel L. Bufford