October 05, 2011

McDermott, Will & Emery Re: Multidisciplinary Practices ("MDPs") - Center for Professional Responsibility

Sherwin P. Simmons, Esq.
Chair – Commission on Multidisciplinary Practice
American Bar Association
c/o Steel Hector & Davis LLP
200 South Biscayne Boulevard
Miami, FL 33131-2398

Re: Multidisciplinary Practices ("MDPs")

Dear Mr. Simmons:

This letter contains McDermott Will & Emery’s (a) endorsement of the June, 1999 Report and Recommendation of the ABA Commission on Multidisciplinary Practice, and (b) our brief commentary thereon.

MWE’s interest in the subject matter of the Recommendation is very strong. We began as a tax law firm, and we continue to provide a full range of tax legal services through our 150 tax lawyers. Needless to say, all of them are very aware of the tax practices of the Big Five, the financial services firms, the consulting firms, the benefits planning firms, etc. Additionally, the fact that the firm's 800 lawyers practice from nine U.S. offices and four European offices provides us with a broad geographical view of the competitive and ethical issues addressed by the Commission.

Our internal surveys tell us that our lawyers are aware that most, if not all, of the non-lawfirms are providing nearly a full range of legal services, including consulting, negotiation of legal issues, drafting legal documents and handling most aspects of corporate transactions and trial preparation. In our view, the organized Bar has, until now, either looked the other way about this activity or raised only sporadic, ineffectual complaints. Worse yet, the true foundation for those complaints – the Model Rules of Professional Conduct ("Rules")- all of which were designed to protect the consumer – seem to have been lost in the worldwide marketing shuffle; and we lawyers seem unable to state a convincing case for the Rules. All this brings us to these conclusions:

The genie is out of the bottle; non-lawfirms are providing traditional legal services and will find ways to continue to do so, so long as they believe there is a profitable business in doing so.

The Commission wisely decided to recognize the apparently-changed marketplace and has generated, in our view, the proper response; an endorsement of change, but with appropriate safeguards.

The primary safeguards of the Rules – independence of judgment, ethical oversight, confidentiality, and avoidance of conflicts – must be defended vigorously and in terms the purchasing public understands.

The Bar should anticipate the likely response of non-law firms to the Commission’s Recommendation, e.g., those firms will endorse the principle of fee-splitting, but will seek to eliminate the safeguards or substantially dilute their impact. If they are successful in doing so, the practice of law (however disguised) outside of law firms will become an even-more attractive venue for the provision of legal services by those who wish to do so unfettered by the Rules.

The American Bar Association absolutely must follow through on the Recommendation to publish, for the first time, a definition of the "practice of law." It is almost inconceivable that such a definition does not exist today; without it, the ability to bring clarity to these issues is illusory.

In summary, we endorse the Commission’s Recommendation permitting multi-Disciplinary Practices, and we urge the American Bar Association to resist attempts to weaken the consumer safeguards it contains. Alternatively, if the Rules are to be relaxed for lawyers practicing in non-law firms, the same level of relaxation should be applied to lawyers practicing in law firms.

Very truly yours,

McDermott, Will & Emery
Its: Vice-Chairman

cc: Stefan F. Tucker