October 05, 2011

Bernard Wolfman Comment on Report and Recommendations, July 1999 - Center for Professional Responsibility

Comment on Report and Recommendations of

ABA Commission on Multidisciplinary Practice

Bernard Wolfman
Fessenden Professor of Law
Harvard Law School

July 21, 1999

The Commission's Report and Recommendations make valuable and important statements when they reaffirm the centrality of the core values of confidentiality, loyalty (avoidance of conflict-of-interest), and exercise of independent judgment. Despite their recognition of that truth, however, other aspects of the Report and Recommendations go a long way to making the Commission's avowal little more than lip service, particularly when it comes to the lawyer's obligation to exercise independent legal judgment in the representation of a client.

By placing its imprimatur on an MDP that is controlled by non-lawyers, one that owns and operates a law practice, the Commission would jeopardize the lawyer's ability to exercise independent legal judgment on behalf of a client. To be sure, the Commission tells the lawyer not to accept "instructions" of a non-lawyer "supervisor," and so we may assume that the lawyer will not. But "instructions" by a "supervisor" is a construct and only that. When one of the Big Five acquires a 50-lawyer firm, and a Big Five non-lawyer director has five major non-legal clients that could be disadvantaged in the future by the precedential impact of a judicial decision one of the lawyers is seeking for a client in a pending case, no "supervisor" will "instruct" the lawyer not to make his argument, but the director will see to it that the lawyer learns of his concern about potential, future disadvantage to these ( his) major clients. Can we be confident that the financial interests of the MDP and five of its clients will not have an untoward effect on the argument the lawyer crafts for the legal client after the lawyer learns of the director's concerns? The education of the non-lawyer MDP director has not included the core values of our legal system, nor the reasons, the principles, and the history behind them. He has not practiced with colleagues in an environment in which those values were pervasive, as the lawyers have. As a result, the risk of the MDP director's not understanding or empathizing with the importance of keeping the lawyer free of extrinsic or conflicted influence is large, too large for the legal system or society to accept.

If there are to be MDPs, if the rules as to fee sharing are to be relaxed or abrogated, lawyers and only lawyers must control the enterprise. We know from common experience that the influence of those on high, of those with the controlling financial interest, will find its way to the bottom, like the water on a leaky roof that inevitably reaches and fills the basement. Ramon Mullerat has reminded the Commission and all of us that "He who controls the purse controls all." We should not forget it.

As with the testimony I presented to the Commission on March 12, 1999, the views I have expressed here are my own and do not necessarily reflect those of Harvard Law School or Harvard University.

Respectfully submitted,

Bernard Wolfman