The case for MDPs

"There are risks and costs to action. But they are far less than the long-range risks of comfortable inaction."

- President John F. Kennedy

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.

The case against MDPs