Multidisciplinary Practice: Peril or Promise (or Both)?

Oct 1999

One issue has come to dominate discussion within the organized bar this year: multidisciplinary practice, which may be defined as a partnership or other entity that includes lawyers and non-lawyers and delivers both legal and other services to clients other than the MDP itself. Debate over the virtues and vices of MDP has raged within the governing bodies of bar associations and elsewhere, and will almost certainly continue for the next few years. Before I tell you the position on MDP that has been taken by this Association's Executive Committee, a few prefatory remarks are in order.

The discussion of MDP to date has been regrettable for two reasons. First, it has been characterized by emotional and overblown rhetoric to a degree unusual even for a profession whose members are sometimes given to hyperbole. Proponents of MDP are charged with sacrificing the highest values of the legal profession for expediency and profit, while opponents are accused of a narrow-minded guild mentality that ignores client needs and wishes. Second, the discussion has been dominated by the model of a large accounting firm employing lawyers, a singularity of focus that is unfortunate because it skews the discussion by concentrating on tensions between standards of the legal and accounting professions that other potentially beneficial professional affiliations do not present (or at least not to the same degree).

The stage for the current debate was set in June when the Commission on Multidisciplinary Practice established last year by the American Bar Association, after several hearings and months of deliberation, issued a report and set of recommendations proposing that the ABA Model Rules of Professional Conduct be amended to permit multidisciplinary practice subject to specified conditions, including (in the case of MDP firms controlled by non-lawyers) a requirement of annual certification of compliance with those conditions and submission to audits to verify compliance. At its annual meeting in August, the ABA House of Delegates debated the Commission's recommendations and then passed a resolution that no change be made in the Model Rules unless and until it has been demonstrated that such changes will further the public interest without compromising lawyer independence or the lawyer's duty of loyalty to clients. (In June the New York State Bar Association House of Delegates had passed a similar resolution.)

Our Executive Committee discussed MDP and its many ramifications at meetings in April, May and June (the latter a special meeting called for this sole purpose). The Executive Committee had the benefit of views expressed by the Committee on Professional Responsibility and a Task Force created by the Council on International Affairs, as well as recommendations by a three-member subcommittee of the Executive Committee.

The Executive Committee unanimously approved a Statement of Position, which I urge you to read in its entirety; it is only 15 pages long, is currently available on the Association's website (www.abcny.org) and will appear in the next issue of The Record. In brief (and any summary of views is perilous, because it is open to misunderstanding and mischaracterization), the Executive Committee agreed with the ABA Commission that, even in the absence of empirical data, there is reason to believe that some forms of MDP would benefit consumers of legal services. Examples include patent lawyers and engineers, environmental lawyers and biologists, and family lawyers and social workers. Opponents of MDP in any form should pause at the fact that MDP has been endorsed in concept by such diverse constituencies as the American Corporate Counsel Association and the American Association of Retired Persons.

The Executive Committee Statement stresses the overriding importance of preserving the core values of the legal profession: independence of judgment, loyalty to the client, preservation of client confidences, competence, avoiding improper solicitation, and an obligation to support pro bono legal services and improve the legal system. The Statement concludes that MDPs should be permitted, "but only under a regime that requires MDPs to respect and preserve" those values (emphasis added). Conflict-of-interest rules should extend to all clients of the MDP, not just those receiving legal services. And the MDP firm, as well as lawyers in the firm, should be subject to the same sanctions that may be imposed on a law firm under the New York Code of Professional Responsibility for violation of disciplinary rules.

The Executive Committee has called for further study, including a dialogue with other professions potentially embraced within the concept of MDP, to determine whether their values and standards are compatible with those of the legal profession. The only irreconcilable incompatibility that has been identified by the Executive Committee is between the confidentiality obligations of lawyers and the disclosure obligations of auditors; "the same MDP may not provide both legal and audit services to the same clients" (Statement at 13).

As the debate continues, I hope that lawyers will avoid dire warnings and hyperbole, but rather bring the same dispassionate, reasoned analysis to bear on the difficult and profoundly important issues posed by MDP that we are expected to employ in handling client affairs. We owe no less to our profession, our clients and the public. The Executive Committee has put it well: ¡§[T]he economic and technological forces that are leading to more applications of MDP will only increase, not abate. We believe the legal profession should find constructive ways to adapt to these forces, while preserving our highest traditions...¡¨ Perhaps that adaptation will prove unachievable or achievable only at too great a price, but seeking it deserves the best of our efforts.