October 05, 2011

General Information Form

Submitting Entity: Commission on Multidisciplinary Practice

Submitted By: Sherwin P. Simmons, Chair, Commission on Multidisciplinary Practice

1. Summary of Recommendation.

The recommendation proposes that the ABA amend the Model Rules of Professional Conduct to permit lawyers, subject to carefully defined safeguards, to deliver services to clients through a new practice vehicle, a multidisciplinary practice (MDP). Under the recommendation, lawyers practicing in MDP's are to remain subject to all rules of professional conduct, except that they would be permitted to form an MDP and share legal fees with a nonlawyer in an MDP for the purposes of the delivery of legal services, and the MDP's would be subject to certain certification and audit procedures, designed to protect the interests of clients and the public while maintaining the core values of the legal profession - independence of judgment, confidentiality and loyalty to clients through the avoidance of conflicts of interest. MDP's would be subject to rules of professional conduct applicable to law firms.

The Recommendation does not permit a nonlawyer to deliver legal services.

The recommendation proposes no change to the duties of lawyers, delivering legal services in an MDP, regarding independence of professional judgment, protection of confidential client information, and loyalty to clients through avoidance of conflicts of interest, which core values of the legal profession are essential to the preservation of the client-lawyer relationship and the protection of the public.

The recommendation proposes that conflicts of interest and their imputation be treated the same with respect to the delivery of legal services in an MDP as in a law firm. The recommendation also proposes that lawyers delivering legal services in an MDP be obligated under the Model Rules to take special precautions to ensure that confidentiality of client information and the attorney-client privilege are not compromised.

Finally, the recommendation proposes that lawyers and the MDP be obligated under the Model Rules to give to the highest court in the jurisdiction with the authority to regulate the legal profession in each jurisdiction in which the MDP is engaged in the delivery of legal services written undertakings that they will comply with the safeguards established for MDP's. Included is a specific undertaking to respect the pro bono publico service obligation of lawyers in an MDP.  

2. Approval by Submitting Entity.

The Commission approved the recommendation.

3. Has this or a similar recommendation been submitted to the House or Board previously?

In 1983, the proposed Model Rules of Professional Conduct recommended elimination of the prohibition against fee sharing with nonlawyers. However, that defeated recommendation permitted passive investment - which the present recommendation does not - and did not contain the affirmative requirements of compliance with all other applicable ethical rules or the added safeguards to protect the public's interests of this recommendation.

4. What existing Association policies are relevant to this recommendation and how would they be affected by its adoption?

Current Association policy supports Model Rule of Professional Conduct 5.4, which prohibits a lawyer from sharing legal fees with a nonlawyer or forming a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law. Adoption of this Recommendation would create an exception to that policy in the case of multidisciplinary practices that conform to specific safeguards designed to maintain the core values of the legal profession while providing additional options for clients seeking legal services.

5. What urgency exists which requires action at this meeting of the House?

The ABA President has called this the most important issue facing the legal profession today. Today lawyers are practicing in increasing numbers in professional services firms in the United States, while claiming that they are not delivering legal services, and abroad such firms are holding themselves out as delivering legal services. The legal profession must address these issues now to ensure that the public interest is served.

6. Status of Legislation. (If applicable.)

Not applicable.

7. Cost to the Association. (Both direct and indirect costs.)

Not applicable.

8. Disclosure of Interest. (If applicable.)

Not applicable.

9. Referrals.

The Report is being circulated to the following:

Chairs and Staff Liaisons of all ABA Standing Committees, Special Committees, Commissions, Sections and Divisions.
National Organization of Bar Counsel.
Presidents and Executive Directors of State and Local Bar Associations Represented in the House of Delegates.

10. Contact Person. (Prior to the meeting.)

Arthur Garwin
Staff Counsel to the Commission on Multidisciplinary Practice
541 N. Fairbanks Court
Chicago, IL. 60611

Sherwin Simmons, Chair
Steel Hector & Davis
200 South Biscayne Boulevard
Miami, FL 33131 2398

11. Contact Person. (Who will present the report to the House.)

Sherwin P. Simmons, Chair, Commission on Multidisciplinary Practice.

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