The case for MDPs
The principles that govern lawyer conduct should not be used to
prevent change unless necessary to protect the public. Our principles
must be universal in application and flexible enough to include all
lawyers, even those who choose to practice in MDPs.
by Jeffrey J. Mawicke
"There are risks and costs to action. But they are far less than
the long-range risks of comfortable inaction."
- President John F. Kennedy
The legal profession should not succumb to inaction. Outside forces
are creating change, and results will be detrimental to the public good
and to the profession unless we collectively help shape the future. All
lawyers should support the "Seize the Future" Resolution now before the
State Bar Board of Governors, including its support of multidisciplinary
practice.
Nonlawyers now are performing work that has been traditionally
reserved to licensed lawyers. This trend is worldwide; Wisconsin is not
exempt. Not only are nonlawyers doing legal work, but increasingly
lawyers doing that same work are employed in nontraditional
organizations, consulting firms, trust departments, accounting firms,
and banks. These changes have occurred already, and there are more on
the horizon. The legal profession needs to embrace the inevitable. To
deny lawyers the ability to deal with and participate in change will
assure our long-run irrelevance. Preventing lawyers from practicing in
an MDP structure will block the evolution that is necessary for the
profession to survive and provide increased service to the public.
Even if we are able to prevent licensed lawyers from working in an
MDP setting, no one believes that we can prevent lawyers who are not
members of the bar from working in MDP settings. Thus, a strong anti-MDP
stand will only assure that our ethical rules apply only to those
lawyers who practice in traditional firm settings. The others will be
exempt. How does that benefit or protect the public?
Lawyers are bound together philosophically (and in Wisconsin,
mandatorily) by our ethical rules. Those principles used to govern us
now are being used to prohibit new service structures rather than being
used to govern the ways in which lawyers render that service.
Preventing Lawyer Participation in MDPs is Wrong
Those who would prevent lawyer participation in MDPs are wrong for
three reasons:
First, MDPs already exist and lawyers are working in them. To deny
this fact requires one to revisit a fairy tale concerning a king and his
clothes.
Second, unauthorized practice of law (UPL) prohibitions will not and
cannot protect our turf. Our competition won't allow it, the legislature
won't allow it, and the public won't allow it. Wiscon-sin's dismal track
record in enforcing our UPL statute has been mirrored by other states.
There are exceptions, but most states' attempts to vigorously enforce
UPL restrictions have met disastrous results. Texas is a good example.
They were unable to successfully prevent the Big Five consulting firms
from operating in the state and the small victory that they did achieve
against Quicken Family Lawyer® was soon overturned by the Texas
Legislature. We will have to learn to live with the reality that our UPL
law will only prevent consumer fraud.
Third, to prohibit the development of an alternative method for the
delivery of legal services to the public is a breach of our core
principles per se. The best example of this breach comes from the ABA
itself. In its anti-MDP Resolution 10-F, the ABA listed as one of our
core obligations the following:
"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 responsibilities for the
quality of justice."
I fail to see how the exclusion of the world's largest law firm
(Arthur Anderson), or an attempt to block the public's wishes in how
people purchase legal services advances the letter, fabric, and intent
of our core obligations.
In and of themselves, MDPs do not violate our principles. The
naysayers in this discussion rest their argument on the belief that MDPs
will encourage their members to so violate such principles and as such
threaten to destroy the profession of law. The obliqueness of this
argument is demonstrated by the prohibition against the sharing of legal
fees and forming of partnerships or other entities with nonlawyers as a
major reason for the banning of MDPs. The ABA's own Commission on
Multidisciplinary Practice points out that:
"The existing bans found in Model Rule 5.4 were not contained in the
original Canons of Professional Ethics adopted by the ABA in 1908. It
was not until twenty years later that the ABA added Canons 33 through
35, Model 5.4's predecessors. The Canons, moreover, expressed the
prohibitions in precatory, not mandatory language. Mandatory language
appeared for the first time in 1969, when the ABA adopted the Model Code
of Professional Responsibility."
Principles That Govern Lawyers Should Not Prevent
Change
Principles that we didn't need for our first millennium of existence,
but which have stood the test of 32 years, are to be forever
controlling. This is not necessary and is not good policy. This is the
same argument made 100 years ago, when the buggy whip manufacturers
warned that the horseless carriage would change the world's
transportation system and that it had no place within the current
horse-drawn system.
My point is that the principles that govern our conduct should not be
used to prevent change unless necessary to protect the public. They
should be used to enable change to occur naturally and within defined
parameters. The public, at least some members, has expressed an interest
in obtaining unified professional services from a multidisciplinary
organization. Attempting to deny them is shortsighted turf
protection.
Because we are a mandatory bar in Wisconsin, we have the maximum
diversification of practice types. As a result, there will never be a
consensus among us as to "how" to practice law. Our strength lies in our
willingness to follow a set of principles that unites us across practice
types and is enforceable from office to office, regardless of "how" we
choose to practice.
If our principles are going to stand the test of time, they must be
universal in application and flexible enough to be inclusive rather than
exclusive. Let us stop trying to outlaw change and begin to deal with
it. To remain true to our core values, I urge the State Bar Board of
Governors to pass the resolution in response to the "Seize the Future"
Conference and proceed to address our principles of conduct with the
Wisconsin Supreme Court so that we may deal with the new horseless
carriage era.
