October 05, 2011

Summary of the Testimony of M. Peter Moser - Center for Professional Responsibility

Summary of the Testimony of M. Peter Moser
Before the Multidisciplinary Practice Commission

M. Peter Moser, Chair of the ABA Standing Committee on Ethics and Professional Responsibility, next spoke to the Commission. He felt that any resolution of the MDP problem that the Commission presented should be practicable to achieve in the face of multijurisdictional lawyer regulation. He thinks that unauthorized practice of laws should be enforced strongly but it’s just not practical to do so because of the cost and because of the public reaction. The rules are ineffective in preventing lawyers from moving across the hall from a law firm to an accounting firm and doing exactly the same work. The accountants call it practicing tax but its actually practicing law. Ethics opinions are consistent in stating that certain activities performed by a nonlawyer would represent the practice of law if done by a lawyer. However, if lawyers tried to enforce ethics rules against accounting firm lawyers practicing in Tax Court it probably wouldn’t be effective. He said the Commission should work to ease constraints on multidisciplinary and multijurisdictional practice to allow lawyers to compete, as accounting firm lawyers are doing what lawyers do but do not follow lawyers’ standards of conflict avoidance and confidentiality.

Section 33, Unauthorized Practice of Law, Restatement of the Law Governing Lawyers, provides for incidental out-of-state practice; it allows a lawyer to provide legal services within a jurisdiction in which the lawyer is not admitted to the extent the lawyer’s activities in the matter arise out of or are otherwise reasonably related to the lawyer’s practice in the jurisdiction where the lawyer is admitted. Mr. Moser urges interstate agreement so attorneys can practice across state lines with some simple form of registration. The Model Rule 8.5(b), Choice of Law Disciplinary Authority provision, in an attempt to deal with it, acknowledges out-of-state practice, although critics - including Mr. Moser - question whether Model Rule 8.5(b) works. Mr. Moser thinks that the original Model Rule 5.7 was a bad rule. The current Model Rule 5.7 allows law-related services with the caveat that appropriate notice and disclosure be given. Mr. Moser thinks Model Rule 5.7, which has not been widely adopted, is probably unnecessary, as most of the ethics opinions follow the same path. He said control of the multidisciplinary enterprise by lawyers is the key to practicality and bar acceptance. Maintaining independence of judgment is the cornerstone distinguishing the practice of law from all other professions. Mr. Moser responded that it would be too expensive and cumbersome to Dean Powell’s suggestion that MDPs conduct periodic self-studies on lawyer independence, conflicts of interest and confidentiality issues and pay for the study themselves.