Letters
Letters to the editor: The
Wisconsin Lawyer publishes as many letters in each issue as space
permits. Please limit letters to 500 words; letters may be edited for
length and clarity. Letters should address the issues, and not be a
personal attack on others. Letters endorsing political candidates cannot
be accepted. Please mail letters to "Letters to the
Editor," Wisconsin Lawyer, P.O. Box 7158, Madison, WI 53707-7158, fax
them to (608) 257-4343, or email them to wislawyer@wisbar.org.
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