Oral Testimony of G. Marc Whitehead, August 1999 - Center for Professional Responsibility

Oral Testimony of G. Marc Whitehead,

before the ABA Commission on Multidisciplinary Practice

August 8, 1999

G. Marc Whitehead next took the microphone. As he thinks MDPs are a really critical issue for the profession, he would like the Commission to consider a couple of points. He thinks one of the core problems is that lawyers cannot define what the practice of law sufficiently to allow effective enforcement actions. That’s the reality. If that’s the reality the profession needs to look at and discuss the problem in a different way than it has previously. In addition, the profession needs to ask the other question, of what value is a law degree and of what value are legal services? Why is the legal profession different from the environmental engineers, the human resource consultants, the bankers, the financial advisers, from the millions of people out there who do exactly what every lawyer in his office does except litigation, and does it every day because U.S. society is involved in giving advice about how to comply with the law. If the Commission struggled with the issues of whether there is a definition of the practice of law that is enforceable, and what is the value of a lawyer that is different than anybody else, it might have a set of issues from which it might proceed to come up with some practical ideas of how to meet this challenge. Because, as the Commission says, lawyers can talk about this forever, but the world is moving on and lawyers can’t stop it. He also worries about the influence of the internet, the influence of E-commerce and E-business, and the fact that the World Trade Organization might wipe out the local practice of law in the commercial field. He thinks the legal profession has been skirting this anti-trust issue in the United States perhaps far too delicately for some time; there are world events that are going to overwhelm lawyers. If lawyers come up with the concept of what is the practice of law, and why is a lawyer a value to a client (what is special about the relationship) they might have a base from which to consider further regulation. He would suggest to the Commission that the independence of the Bar is one such value. He doesn’t know the answer, but thinks the ability of someone to go to a lawyer and fight somebody more powerful than he or she is extremely important. He thinks that is one of the values the profession might examine that is different from other professions. He was carried away by the wonderful statement of Dan Brennan (QC of the Bar Council), but doesn’t know whether or not it’s realistic. He doesn’t think the attorney-client privilege is a good rationale because it is being eroded and many countries of the world don’t recognize it (for in-house counsel), so in a global society it is, perhaps, of little value. He opposes deferral of the MDP issue, although he doesn’t think the House of Delegates is ready for a decision. He thinks, however, the debate should be started and they shouldn’t wait until Dallas to have another debate - the world is moving too fast for the Bar to do the usual ‘let’s study this for a year or two or three’, and ultimately come up with a decision. The horse has been long out of the barn and he suggests the Commission might want to consider recommending immediate action to reaffirm everything up to ancillary business, because right now those who want to be conservative are cutting lawyers out of business practices and developments that are trying new things, while the rest of the competition gets way ahead. He doesn’t think this is fair to the lawyers who want to compete in this new world, this E-business world. The one issue that might merit longer discussion is whether a lawyer can be employed by an entity and still represent an outside client. In closing, he urged the Commission to think a little differently about the MDP subject and to have a debate on the House floor even though there may be no decision.