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Multidisciplinary Practices:
Service Package of the Future?

But will traditional client protections be the cost? Can a lawyer working for or with nonlawyers preserve his or her independent judgment? Or is there a risk that nonlawyer stakeholders could sway that judgment, putting it second behind profit concerns? How would conflict of interest and client confidentiality standards be maintained when lawyers are partners with other professionals who have no such standards, or at least less stringent ones?

Part of the difficulty in seeking answers is that the legal profession is unfamiliar with the rules of conduct of other professions. What precisely do accountants do, for example, to protect client confidentiality? How do they handle conflict of interest? What are the differences between the legal profession's standards of conduct and those of other professions? Researching that kind of information is one of the tasks set before the ABA Commission. Harold Levinson, Vanderbilt University Law professor and Commission member, has stated that he is in the process of drawing up a side-by-side comparison of professional standards of accountants and lawyers.

Another part of the difficulty is that many clients are unaware of how they benefit from lawyers' professional standards. They don't understand, for instance, what they may be losing if they hire an accounting firm to settle a personnel dispute instead of hiring an attorney. If the dispute ends in a lawsuit, the accountant with whom the client has shared information could be called as a witness - against the client. Lawyers would never be put in that position because of attorney/client privilege rules.

Now, take that a step further into a bona fide MDP setting, where lawyers, accountants, and other professionals are all involved with the client. Does the lawyers' client privilege remain intact? Is the client still protected when other professionals, who have no client privilege standard, also are involved in what is or becomes a legal matter?

Searching for answers to these and many more questions - with the public's best interest in mind - is part of what lies before the ABA Commission and the legal profession as a whole. Accompanying that must be an effort to better inform the public about what lawyers' rules mean to clients. The core values that lawyers talk about preserving must be seen by the public as holding value to them. That means lawyers have to do a better job conveying what they give their clients, points out Steingass. "It's not just an approved tax return or a will to sign," she says. "It's all the preparation, training, currency on legal issues, and professional standards involved that make us competent to serve clients."

"To me," Wilber says, "the real issue here is not whether lawyers should own firms with accountants or not. It's how are we going to give our clients what they want, whatever the rules are?"

Looking abroad

The Big Five accounting firms have succeeded in attracting top attorneys. All combined, they employ more than 5,500 nontax attorneys worldwide (excluding lawyers practicing tax law exclusively within the firm's accounting or tax divisions), according to the November 1998 American Lawyer. PricewaterhouseCoopers leads the way with more than 1,600 lawyers in 39 countries. Only two law firms in the world have more attorneys than PricewaterhouseCoopers.

All of the Big Five are actively pursuing clients - and offering legal services - in markets as diverse as France, Spain, Australia, Canada, and the Confederation of the Independent States of the former Soviet Union.

While many countries allow MDPs, at this time only the state of New South Wales, Australia, has ethics rules specifically addressing MDPs. And those rules require that an MDP remain in the effective control of the firm's lawyers.

So far, only one report of disillusionment among MDP attorneys has surfaced. A recent British legal periodical reported that six highly respected attorneys were leaving MDPs in Spain, Scotland, Hong Kong, and Paris (Commercial Lawyer, issue 27, 1998) to return to traditional law firms. The article says little about their reasons, only mentioning differences of culture between accounting firms and law firms. The article poses questions: "Has the tide turned? Has the forward march of the accountants halted?"

Like the ABA Commission, international bar groups also have grappled with the ethical questions surrounding MDPs. The International Bar Association Council adopted a resolution in September 1998 calling for neither approval nor disapproval of MDPs. "The IBA took the position," Wilber explains, "that protection of client confidentiality, the independent judgment of lawyers, and so on are the bedrock principles of the legal profession. We're not going to tell the regulators not to allow MDPs. We're saying that if you allow MDPs, that wherever lawyers work - no matter if it's a traditional law firm or something that's new - those principles must be protected."

Another international professional group, the Council of the Bars and Law Societies of the European Union, adopted a position opposed to MDPs in 1996. At a November 1998 plenary session, a new proposal attempting to soften that position won a majority of votes. But it failed to pass by the required supermajority.

What is the upshot of all this on a global scale? Some countries allow MDPs; some don't. Some are moving in that direction; others, such as Finland and Denmark, remain stalwartly opposed to MDPs, at least for the time being. Meanwhile, the Big Five seem to be forging ahead with a full head of steam. And banks, insurance companies, securities firms, and others have shown interest in moving in the same direction.

Looking ahead

The ABA Commission continues its process of study. As stated in its January 1999 "Background Paper," "The Commission has not reached even tentative conclusions." To assist in fashioning its eventual recommendations, the Commission has held three sets of hearings (in November 1998 and February and March 1999). Practicing attorneys from the U.S. and abroad, law professors, judges, legal consultants, representatives from the Big Five accounting firms, and consumer representatives have presented their varying points of view. The "Background Paper" and hearings testimony are available on the Commission's Web site. The Commission aims to submit its final report and recommendations to the ABA House of Delegates at the latter's annual meeting in Atlanta in August.

The final recommendations, however, are only a first step. The ABA House of Delegates decides what, if any, action to take. Any recommended changes in professional rules of conduct then must be dealt with in each state by whatever agency has jurisdiction, such as the state supreme court (as in Wisconsin) or the bar.

While the Commission weighs whether current rules should be relaxed to allow creation of MDPs, it is examining various models for delivery of such services. The "Hypotheticals and Models" also can be found on the Web site, and the Commission is inviting comments.

"The models don't telegraph our thinking," Simmons emphasizes. "They state our analysis. These are the kinds of things we could do. Maybe we'll get somebody to come up with a brilliant response to them. We're looking for Solomon."

Dianne Molvig operates Access Information Service, a Madison research, writing, and editing service. She is a frequent contributor to area publications.