October 05, 2011

Oral Remarks of Larry Ramirez - Center for Professional Responsibility

Oral Remarks of Larry Ramirez,

Chair of the General Practice, Solo and Small Firm Section

Larry Ramirez, Chair of the General Practice, Solo and Small Firm Section testified before the Commission. Solo and small firm lawyers comprise two-thirds of the nation’s lawyers and the Section had appointed a Task Force, chaired by Lee Kolczun, to study the multidisciplinary issue. He presented the recommendations that the Task Force made to the Section Council.  Those recommendations were that: 1) legal regulatory authorities examine and accept multidisciplinary practice in some form, 2) rules against fee sharing with nonlawyers be relaxed, 3) a regulatory structure be instituted to protect clients, and 4) that the Commission, in conducting its analysis and formulating its recommendations, consider the impact of such recommendations upon the two-thirds of this country’s practitioners who are solo and small firm practitioners.

Professor Daly asked the Section to share with the Commission the Task Force Report that was premised on several months of discussion within the Task Force and with Section members and Mr. Ramirez agreed to do so. Asked whether the lawyer-member needs to control the multidisciplinary partnership Mr. Ramirez reflected on his former role as Chair of the Disciplinary Board in New Mexico to say he personally doesn’t see a lawyer’s ethical responsibility to the client to maintain independence and objectivity changing if an MDP were permitted; he doesn’t think a rule requiring an MDP be under control of lawyers is necessary. Professor Haddon asked if the Task Force report explored whether the MDP demand was client driven or practitioner driven. In response Mr. Ramirez listed Task Force identified challenges that general practitioners face as client retention, limited resources, maintaining periodic contact with clients and objectivity, and potential solutions that would involve a multidisciplinary practice as deeper client relationship through more consultative services, single points of contact, and strategic alliances with other professionals. Regulating the MDP entity if lawyers were involved and shoring up the regulation of unauthorized practice of law were not specifically discussed by the Task Force but Mr. Ramirez said there is a sense on the Section Council that the profession needs to get its own house in order. Asked by Mr. Wander if a size cut-off , say 25, should demarcate when the profession should start to get concerned with an MDP Mr. Ramirez said ‘no’, it’s an individual lawyer question. He thinks MDPs would help a solo or small firm lawyer attract business and retain clients by providing multiple aspects of service. The Section’s recommendation that the rule regarding fee-splitting be relaxed in that it no longer be absolute doesn’t mean there shouldn’t be any such rule. Any rule should encompass disclosure to the client of what is happening. To Professor Hazard’s iteration of the historic antecedents of the no fee splitting rule as grounded in the fear of exploitation of lawyers by somebody else and suggested addition of rule language that the fee be a reasonable reflection of value, Mr. Ramirez, to laughter, questioned whether the public would agree with the concept of exploitation of lawyers and said the Task Force would continue to study the issue. In response to Ms. Garvey’s question Mr. Ramirez believes that the Section Council is not especially concerned with the form of the entity as long as core ethical values are preserved and the fee has a reasonable relationship to the actual work performed. Dean Powell raised the factual pattern of a state statute requiring anyone who becomes aware of child abuse report it to law enforcement authorities and the State Bar Ethics Committee determining that it did not apply to the lawyers because of their unique relationship to the judicial function of the state. Mr. Ramirez commented that there may be a pure conflict in the various duties of the different professions and this may impact on the areas of law in which multidisciplinary practice can occur. Where the lawyer’s duty is greater than that of any other profession the lawyer’s rule would have to apply. Mr. Ramirez clarified his ‘fee calculation bearing a reasonable relationship to the work performed’ remark to say that lawyers at times advise clients on nonlegal matters and disclosure is a necessary component of fee negotiation. Mr. Nelson framed his question around the small town lawyer’s peculiar situation with conflicts (more than most lawyers) and how that situation would be exacerbated by bringing in another professional such as a real estate or insurance agent who would be subject to the lawyer conflict rules. That is, wouldn’t the price of admission to a lawyer-inclusive MDP be too high if that professional were not able to do business with people who are adverse to the lawyer’s clients in a legal matter? Mr. Ramirez agreed that this is a deterrent to being able to put together a multidisciplinary relationship in a small town and that an ad hoc relationship is the likely option. Mr. Mundheim raised the question of how well the client understands that different ethics rules apply depending on whether or not the nonlawyer is working on a particular matter with the lawyer; he suggested that requiring the lawyer to practice in a separate entity, contractually related to other professionals, would serve as explanation. Mr. Ramirez thought such a relationship might raise some issues of overlapping control but he didn’t think the Section Council would have a problem with the separate entity concept. Mr. Ramirez told the Chair that the noted ethicist who claimed that small and solo practitioners are not interested in multidisciplinary practice was very wrong. The Chair solicited Mr. Ramirez and the Section’s cooperation in informing the House delegates about the MDP issue and getting the states to participate in the discussion.