September 1999 

 Multidisciplinary Practice: Round One

by Wood R. Foster Jr.

What are your bar leaders thinking? View our archives of President's Page columns.

View the report of the ABA Commission on Multi-Disciplinary Practice.

Learn what the MSBA is doing in response to the issue.

Why doesn’t K-Mart have a "Legal Services" department? Why don’t we see shingles on Main Street announcing "Jones & Smith Chiropractic and Tort Law Clinic"?

These are questions most lawyers never bother to ask, since we take it for granted that such things cannot exist. The reason is found in Rule 5.4 of the Minnesota Rules of Professional Conduct, which of course is patterned after the ABA model rule. During the many years I have been involved in bar activity, Rule 5.4 has never been a subject of controversy; indeed, Rule 5.4 has been "below the radar" for as long as I can remember.

All of that is about to change. A commission of 12 lawyers, judges, and law professors was appointed in August 1998 by then-ABA President Phillip Anderson to study and make recommendations on the issue of "multidisciplinary practice." The commission issued its "bombshell" report in June 1999, concluding that

The report of the ABA Commission may be found here.

If the commission’s report caught bar leaders by surprise, we may be forgiven. No serious allegation of the unauthorized practice of law has surfaced in Minnesota in nearly 40 years. The MSBA was actively caught up in "turf" issues from 1915 to 1960; indeed, one important function of any bar association is the role it plays in defining the boundaries of the "practice of law." But in Minnesota, at least, the boundaries have been relatively static for decades. Where they have changed, it has largely been by acquiescence.

So why the sudden stir?

One answer may lie in the many forces described in my last column ("A Profession at the Crossroads," August Bench & Bar) that relentlessly push us toward the "businification" of the law. Perhaps we have reached a point at which the search for new ways of marketing and delivering legal services has made some form of multidisciplinary practice all but inevitable.

An unusual aspect of the sudden debate over multidisciplinary practice is that the issue comes down "from above" rather than coming up "from below." The ABA commission does not appear to have found its origin in any groundswell of demand from state bar associations. If anything, national bar leaders appear to have developed a genuine concern over the recent acquisition of large European law firms by "Big Five" accounting firms.

Reactions to the ABA commission report range from hostile to "huh?" While many are curious, most are amazed that this is suddenly such a "big" issue. ABA insiders seem to have little doubt that the focal point of the issue is the accounting profession; at a recent meeting of the National Conference of Bar Presidents, a man dressed as Paul Revere could be seen running from meeting room to meeting room calling out, "The accountants are coming! The accountants are coming!" Not surprisingly, much of the dialogue on the subject so far seems to center around the plans -- plots? -- of the Big Five, two of which now rank among the world’s top five employers of attorneys.

The "evidence" as to the need for a change in Rule 5.4 is still anecdotal at best. A primary inquiry for the newly-appointed MSBA Task Force on Multidisciplinary Practice will be to measure both the demand for change and the extent to which accounting firms and others are already engaged in the practice of law. On balance, there is good reason to suppose that within the last three to five years, things have been changing rapidly, especially in the areas of tax and international business law. But the ABA commission also concluded that substantial support exists on Main Street among solo and small firm lawyers who see the advantages of combining forces with accountants, realtors, and others. Is that the sentiment in Minnesota? Our Outstate Practice Section -- and many others -- will be sounding out Minnesota lawyers in the coming months on the depth of this and other conclusions of the ABA commission.

The complexity and elusiveness of the issues that confront us are reflected by the range of reactions to the ABA report. Some argue that we have to change Rule 5.4 simply in order to recognize a fait accompli. In essence, we need to close the barn door before more horses get out. Others feel the commission’s proposal is really a Trojan Horse that will force an impossible set of enforcement rules -- rules that will undoubtedly vary from state to state -- on the major accounting firms. This theory argues that a myriad of MDP rules will stifle the effort of large accounting firms to "take over" the practice of law in the United States. Still others visualize multidisciplinary practice as a way for lawyers to be able to hire accountants (and others) to work for us, without really letting them hire us to work for them. Finally, of course, there are many who feel the system cannot be changed at all.

The debate is just beginning, and it will be with us for years. Please don’t be left behind. Read the articles in this issue. Think about them; voice your opinion. Even if the concept of MDP is voted down in early rounds, the issue is here to stay. The economic factors that drive both our society and our profession will continue to push us toward combinations of businesses and services.

Like it or not, change is inevitable. But once again, we have the opportunity to shape that change in ways that will not undermine the core values of our profession. If we keep our eye on the importance of that goal, we will stay abreast of the times without jeopardizing our professional status.

Wood R. Foster Jr. is president of the Minnesota State Bar Association. A partner in the firm of Siegel, Brill, Greupner, Duffy & Foster, PA, he concentrates his practice in commercial litigation and class action. He is a graduate of Amherst College (1965) and of the University of Michigan Law School (1968).