Letters

Treat Lawyers With Respect as Officers of the Court

Last year, my attorney son and I were involved in litigation in the San Diego County Courthouse. We were very impressed that we only needed to display our State Bar of Wisconsin I.D. cards to avoid the intrusive entrance security scanners. This is not the case in Wisconsin. I personally find it demeaning to have to empty my pockets and then extend both arms horizontally before I can proceed into a courtroom. We are officers of the court and should enjoy the same privilege as plainsclothes police officers. We should take note of California, with its 100,000 registered lawyers, and adopt its coveted practice.

Peter N. Flessas,
Milwaukee

Bar Should Not Rush to Endorse MDPs

In December the State Bar Executive Committee released a proposed "Resolution in Response to the Seize the Future Conference" (the "resolution," online at www.wisbar.org/bar/stfres.html). Regarding multidisciplinary practice (MDP), the resolution "[s]upports multidisciplinary practice by attorneys and other professionals with the ability of sharing of fees for [legal] services, management and supervision of attorneys, other professional or lay managers, by entities, which may be owned by attorneys, other professionals, investors or any combination of the same."

In late 1999, then Bar President Leonard Loeb formed the Wisconsin Multidisciplinary Practice Committee to study issues concerning MDPs. That committee, chaired by Thomas Shriner of Milwaukee, filed a report (online at www.wisbar.org/mdp), which the Board of Governors approved on June 28, 2000. The MDP Committee did not make a recommendation for or against multidisciplinary practice. Rather, in its report, the committee recommended that the board:

• consider how best to foster discussion of the MDP issue among members;
• decide initially whether the board's own consideration of the merits of the MDP issue should focus on the interests, views, and unique perspective of lawyers as a profession or should seek to discern a wider public policy;
• consider involving in the process local and specialty bars, and Bar divisions, sections, and committees, and consider having separate groups of lawyers for and against authorizing MDPs gather information and present it to the board;
• keep the discussion of unauthorized practice of law (UPL) within the confines of the MDP debate; and
• discuss and ultimately adopt (or choose not to) a State Bar position on MDPs, recognizing that the "final word" for Wisconsin will be spoken by the Wisconsin Supreme Court and, potentially, the legislature, not the ABA.

The board should follow the MDP Committee's recommendation for a pro and con study of MDPs, a method used in other states to fully explore the issues. (For example, the Illinois pro and con reports, and the Florida pro and con reports) Such study would assist State Bar members and their elected governors in carefully considering important issues not addressed in the resolution proposed by the Executive Committee. In particular, State Bar members and their elected governors must carefully consider whether the practice of law within MDPs can be reconciled with the core values of the legal profession, which serve as a foundation of the American justice system.

As articulated in Recommendation 10F approved by the ABA House of Delegates, these core values are:

• the lawyer's duty of undivided loyalty to the client;
• the lawyer's duty to exercise competently independent legal judgment for the benefit of the client;
• the lawyer's duty to hold client confidences inviolate;
• the lawyer's duty to avoid conflicts of interest with the client;
• the lawyer's duty to help maintain a single profession of law with responsibilities as a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice; and
• the lawyer's duty to promote access to justice.

The ABA House of Delegates and numerous state and local bar associations have concluded that multidisciplinary practice is inconsistent with the above core values and contrary to the public interest. While the Executive Committee's resolution makes a passing reference to ABA Recommendation 10F, it does not discuss how the practice of law within MDPs can be reconciled with the core values. To date, there has been no thorough analysis by Wisconsin lawyers of the pros and cons of MDPs. Undoubtedly, an in-depth study of the impact of MDPs on the core values of the profession would benefit the entire legal community and the clients it serves.

The Board of Governors, which is scheduled to vote on the resolution in May, should postpone consideration of the Executive Committee's resolution until there has been an in-depth study by Wisconsin lawyers charged with fully exploring the pros and cons of MDPs. State Bar members and their clients deserve no less.

Philip J. Halley,
Milwaukee

Response: President's View on MDP

We have to consider changes to the practice of law and the delivery of legal services because:

• Arthur Anderson is already the largest law firm in the world.
• The Big Five consulting firms are right behind.
• Accounting-consulting firms have an explicit business plan to enter the legal market in the United States like they have in much of the rest of the world.
• Thousands of lawyers work in Wisconsin for entities not owned or controlled by lawyers.
• The Big Five are hiring "prestige" tax partners from major law firms and paying them much more than they earned in the practice.
• Dan Eastman, lawyer, entrepreneur, and chair of the State Bar's Business Law Section, says that the law firm model is not working for his business. He must look elsewhere.
• Dale Sorden, retired from Quarles and Brady, warns that unless lawyers change their rules, business and family consulting will migrate to other professions and we will be only litigators.
• Arizona Chief Justice Thomas Zlaket warns that lawyers are on the road to irrelevancy.
• Charlie Robinson, elder law sole practitioner in Florida, warns that 60 percent of today's lawyers will be out of business in five years.
• Academics and other experts have concluded that low- and middle-income clients will be better served if the law is opened up to competition.
• Businesses have expressed an interest in having integrated, one-stop services available at multidisciplinary practice firms.
• It is the uniform opinion of those who have studied the issue that vigorous enforcement of the unauthorized practice of law statute is neither feasible nor effective. Any attempt to keep others out of the legal market may precipitate an anti-trust complaint against the coconspirators.
• The status quo that some seek to protect no longer exists. We are in a competitive marketplace with nonlawyers now offering services that have been the exclusive domain of lawyers for the last 80 years. Nonlawyers are doing almost everything that lawyers do.

It is essential to the public interest and to the interests of the legal profession to maintain one profession that is subject to reasonable and enforceable ethical standards, rather than to have some lawyers rigidly controlled and others with no control at all. Can we modify our ethical rules to reach those who practice in nontraditional legal organizations?

If we set aside the two ends of the law/accounting spectrum, litigators on one end, auditors on the other, what about the vast middle ground between the two professions - the legal work that does not involve litigation or dispute resolution and the accounting work that does not involve auditing? Advice, analysis, consulting, planning, compliance, drafting, negotiating. Can we find common ground on ethical rules that will protect the public? I think so. If we cannot, both the public and the legal profession will suffer.

The Resolution now before the Board of Governors does not purport to resolve all of the important details of specific ethical rules. It seeks to start the long process of analyzing and responding to the enormous changes that are overtaking lawyers and their clients.

I don't have all the answers; no one does. I do know that it would be a mistake to stall this momentous discussion at the Board of Governors level. We need to sponsor a wide debate involving our members, the public, and the supreme court. MDPs exist. Lawyers participate in them now. Let's get on with the business of studying the rules to protect the public and preserve the profession.

Nero fiddled as Rome burned.

Gary Bakke,
State Bar President

Fee Arbitration Should Be Mandatory and Part of Bar's Program

When I began my journey in the practice, an unresolved fee dispute between a lawyer and a client ended in one of several ways, primarily: 1) in court as a result of a Summons and Complaint (typically a collection action filed by the lawyer or a breach of contract action filed by the client); or 2) a grievance filed by the client against the lawyer brought before a local ethics committee of the voluntary State Bar Association (with no enforcement power); or 3) with both parties walking away having a bad taste in their mouths because a) the lawyer wrote off all or part of the fee and lost a client, and b) the client was frustrated, fired the lawyer, and usually was disgusted with the delivery of legal services by the system. Moreover, even then, there was a concern that the client might bring a malpractice action against the lawyer regardless of the manner in which the dispute was resolved and despite the outcome of the engagement.

The State Bar Fee Arbitration Program for years has provided a forum for resolving fee disputes between clients and lawyers. I have chaired District 2 of this program for more than 20 years. The panel of arbitrators in District 2 is composed of 65 established and credible lawyers (five years' practice minimum) and 12 public members from various walks of life.

While the program has enjoyed considerable success in resolving fee disputes and is one of the major public services of the State Bar, it is surprising how few lawyers, judges, and members of the public the Bar serves are aware of the program. I am a dedicated and experienced advocate for our program, as it is, in my view, by far the best forum for resolving fee disputes between clients and lawyers we have yet developed.

Current issues on lawyer regulation before the Wisconsin Supreme Court and the State Bar have again brought the matter of fee disputes to the attention of both lawyers and the public. I was privileged to appear before the State Bar Board of Governors in January to present the position of the Bar's Resolution of Fee Disputes Committee. The committee, in an 11-1 vote, adopted the principle of mandatory arbitration for resolving fee disputes. The committee will send the board evidence of its action and will recommend an amendment in the Program Rules. The committee is composed of public members and lawyers experienced in working with the program. A summary of the committee's position follows:

1) The current program does not require the lawyer to participate.

2) The result is that the client and the public are left without the certain participation of the lawyer involved in the fee dispute and no binding decision can thus be made to resolve the dispute.

3) The public questions the efficacy of the program, as it seems to be just another way in which the lawyers do not have to answer for their conduct if they choose not to participate.

I reminded the board that if we do not govern ourselves well, particularly when it comes to our cost to the public, then the public will find other ways to govern us. My years of experience serving the Bar and the public in the program have taught me that fee disputes arise primarily because, frequently, the lawyer does not take the time with the client to understand and then explain the engagement up front, as well as its risks and uncertainties and cost; and often neglects to keep the client informed as the engagement runs its course. Fee agreements are helpful and prudent in many engagements, but they are not a substitute for good communication with the client.

When a fee dispute arises that cannot be resolved informally, it is my view that the lawyer involved should be obliged, ready, and willing to take the dispute to final and binding arbitration in the Bar's program. Accordingly, I ask the Board of Governors to accept the recommendation of the Resolution of Fee Disputes Committee and authorize the amendment of the Program Rules to require lawyer participation. It is an obligation whose time has come and, furthermore, it is part and parcel of the privilege granted by the public we serve to practice law.

F. Anthony Brewster,
Madison

Wisconsin Lawyer