October 05, 2011

Marna S. Tucker Re: Multidisciplinary Practice - Center for Professional Responsibility

April 7, 1999

Sherwin Simmons
Chair, ABA Commission on Multidisciplinary Practice
541 North Fairbanks Court
Chicago, IL 60611

Dear Mr. Simmons:

I have been following with interest the work of your Commission. Although much of the discussion of the multidisciplinary practice issue suggests that it is a concern of large law firms and large accounting firms over the legal and advisory needs of Fortune 1000 companies, my practice in family law and domestic relations leads me to believe that the issues are much broader. I can see a potential for consumer demand for integrated service providers in my area of the law.

Before I offer examples of such demand, let me provide a brief summary of my professional background. I have been practicing in the family law and domestic relations area for almost thirty years. In 1972, I joined a fledgling law firm in Washington, D.C., which is now known as Feldesman, Tucker, Leifer, Fidell & Bank LLP. Feldesman, Tucker, a firm of approximately 35 attorneys, is considered by many to be one of the preeminent domestic relations law firms in the D.C. Metropolitan Area. I have, for many years, been active in both the D.C. Bar and the ABA, as well as other professional organizations. I was President of the D.C. Bar from 1984 to 1985, and a member of the D.C. Bar's Board of Professional Responsibility from 1977 to 1983. I have been the D.C. Bar's delegate to the ABA House of Delegates for over twenty years. I have also chaired a variety of ABA Sections, Committees, and Commissions, including the Standing Committee on Professional Discipline.

In my practice, my clients are, for the most part, able to afford the professional advice they desire. Many of our clients seek to retain us after they have retained counselors, accountants, financial planners, and other advisors. We work with these other professionals as needed, but the costs of layers of advisors can be prohibitive. Middle and lower income families, because of these prohibitive costs, may not avail themselves of the necessary services of these other professionals. Based on my experiences, I believe that there are numerous instances where individuals with family law or domestic relations problems could benefit from integrated services obtained from professionals working together in one firm. Let me offer two examples.

Families in crisis commonly seek mediation services as a way to reach agreement on the issues that divide them, without having to resort to formal and often costly court proceedings. Today, the demand for mediation services in the domestic relations area is satisfied in part by family mediation centers that have formed throughout the United States. Such centers assist clients in a wide variety of matters, including separation, divorce, child custody, parenting, visitation, property division, wills and estates, elder care, spousal support, child support, family business, pre-nuptial agreements, and other disputes, conflicts or issues involving the family.

Because of the restrictions on fee-sharing and partnerships with non-lawyers, these centers cannot today include both practicing lawyers and non-lawyer professionals. Instead, many of the centers are staffed solely by non-lawyer psychologists, social workers, marriage or family counselors, clergy, accountants, and financial planners. Others are staffed only by lawyers. In either case, the clients are not receiving the full extent of the services they require because the assistance they need from a family mediation center is not exclusively legal or non-legal, but rather an inextricable combination of both.

Child custody decisions, for instance, obviously have a legal aspect. But other considerations -- including the psychological impact of various custody arrangements on the children -- are important, if not more so. A lawyer working alone on a child custody matter is not properly trained to address such psychological considerations without input from those professionals. Likewise, a social worker or psychologist, working alone, may be unaware of relevant legal restrictions on custody arrangements and is obviously unable to draft a legally correct child custody agreement. Working together, the lawyer and the psychologist can help resolve a child custody dispute in a manner that accounts for both the legal and non-legal aspects of the problem.

Integration of lawyers in family mediation centers could enable families to involve an attorney sooner. Families today often delay -- or forgo altogether -- hiring a lawyer because of concerns about the perceived costs. In addition, many individuals view lawyers as a last resort -- the professional to turn to only when all else has failed and they have no choice but court proceedings. Both the failure to use the attorney as a problem solver and the delay in seeking legal counsel are both unfortunate and costly. A lawyer involved early on in family problems can help solve problems in a non-adversarial manner, both by explaining what might happen if an agreement is not reached, and by educating the family about the broad legal principles that apply to the situation.

Consider another example in the family law area -- a single mother dying of a terminal illness. Among the many difficult problems the mother faces is planning for the future care and custody of her children. This problem has many facets, including deciding on the most appropriate future arrangements for the children, ensuring that the necessary legal documents are executed, and, to the extent the mother's finances allow, providing for the future financial support of the children. Unfortunately, the professional best suited to any one task is probably not well-suited to address all of them. A social worker/psychologist might work with the mother, the children and other family members to resolve who should act as the children's future guardian, but cannot draft legal documents. A lawyer most likely lacks the skills to assist the mother in determining the best future guardian of her children and to assist the children and the family in making this painful transition. Neither the social worker nor the lawyer is best able to manage the finances of the family, and advise on investments for the future care and education of the children.

In today's world, the mother can retain separate professionals to assist her. That is what most of my clients do. But that may not be the most efficient option, and it is surely not the most cost effective. Suppose the family is working with a social worker who has developed an opinion as to the best prospective guardian. Assume the social worker recommends that the mother retain counsel to draft the necessary papers. The lawyer may seek to advise the mother on legal considerations that will impact her guardianship decision. In an ideal world, the lawyer and the social worker would work through this issue together. Because of the ethical constraints on both the lawyer and the social worker, as well as a lack of experience in working together as a team, that may not happen.

In my practice, I work in collaboration with professionals in other disciplines. I regularly consult with accountants, social workers and psychologists and financial planners. If the rules were changed to permit integrated firms, I doubt that my own practice would change very much or that my firm would immediately invite non-lawyer professionals to join as partners. As I noted earlier, most of my clients tend to assemble teams of lawyers and non-lawyers to achieve the needed result. However, I think my practice could be more efficient and less costly to this segment of my clientele if we were to move toward an integrated and multidisciplinary practice.

As to the middle-income segment of my clients, sadly, many simply lack the financial resources to obtain services from different professionals. And certainly, low-income families have even a greater problem. This means that families that have the greatest need for a range of services can least obtain them. Permitting lawyers to share fees with non-lawyers, and to join firms with non-lawyers, has the potential to advance the interests of these consumers. I suggest that the bar look very hard at its rules, and develop the least restrictive alternative to permit such associations without compromising the values central to our profession.


Marna S. Tucker