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.
Jeffrey J. Mawicke,
Illinois 1973, is a partner in the Milwaukee firm of Domnitz, Mawicke
& Goisman S.C., where he practices in real estate development, mergers and
acquisitions, and municipal and corporate law.
The case against MDPs
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