April 2000 

Multidisciplinary Practice: Round Two

by Wood R. Foster Jr.

Since last summer, a blue-ribbon group of Minnesota lawyers has been grappling with the issue of multidisciplinary practice in the wake of the controversial report of the ABA Commission on Multidisciplinary Practice. By the time you read this column, the MSBA’s task force will be in the process of disseminating its findings and recommendations.

Although I have no special inside information, deliberations of the task force to date suggest strongly that Minnesota’s task force will endorse a change of some kind in the current rule prohibiting fee sharing between lawyers and nonlawyers.

The entire issue of multidisciplinary practice will be fully aired at a "town hall" session at the convention in Duluth on the afternoon of Thursday, June 22. Further debate -- and potentially adoption of a formal MSBA position -- will occur at the House of Delegates meeting the following afternoon. What better chance for you to be heard on this difficult topic?

Both the ABA commission and the Minnesota task force have found that there is demand for multidisciplinary services, including legal services. In reading material on this subject, I’ve thought that there cannot be much hard evidence of demand, since the service has never really been broadly available. But I have conceded that the very issue of "demand" is almost incidental to the debate.

Instead, I believe we should focus on the reality -- what is happening out there. Those who would shout down the ABA commission report are engaged in a form of denial that does not really advance the debate. At the same time, lawyers are understandably reluctant to follow doctors into a professional services delivery system that seems to compromise independent professional judgment.

Look at the facts: Already, over 5,000 lawyers work for the Big Five accounting firms. Many others work for "captive" law firms whose rent and salaries are paid by insurance companies for the defense of policy claims. Plaintiff lawyers and independent defense lawyers have known for years that the imputed conflicts here are irreconcilable, but nowhere (to my knowledge) has this situation been successfully addressed in the context of the unauthorized practice of law.

As well, there are well-established and unquestioned groups of lawyers who, in one sense, have always worked for MDPs. These arguably include government lawyers and some in-house corporate lawyers. Any government lawyer can tell you that the internal issues of conflict are rife and always challenging; and while not all in-house lawyers offer legal services to the public, many lawyers employed by banks and trust companies have arguably been doing so for decades.

In this fast-moving economy, the reality is that MDPs are rapidly increasing in number and variety. This alone bespeaks demand. The only real question is, what -- if anything -- do we do about them?

At base, any discussion of multidisciplinary practice quickly becomes enmeshed in the definition of "the practice of law" and the extent to which that group of services is the exclusive domain of licensed attorneys. The ABA report is quite conservative on this issue, defining virtually everything that is currently done in law offices as "the practice of law," itself a very controversial conclusion.

The American Antitrust Institute recently issued a report challenging the right of any organized bar group to maintain a monopoly on things that can be done by persons other than lawyers:

How could the legal profession have been allowed to stifle the development of a vibrant professional services market through the imposition of antiquated guild rules? How could lawyers, who are supposed to place their client’s interests paramount above all else, have been permitted to frustrate their clients’ desire to have the option of obtaining integrated professional services from a single firm?

The report concludes that the ABA is not immune from antitrust scrutiny and that the "core values" of the profession do not demand that lawyers "choke off competition" from multidisciplinary services firms.

Minnesota’s UPL statute is very broad. It is probably also largely toothless, and has not been enforced. Prosecutors are unwilling to take on unauthorized practice issues for understandable political reasons; courts, if pressed, will be hard-put to uphold an exclusive right of lawyers to prepare real estate documents, estate plans, tax returns, etc.

One option that will be aired in Duluth is the suggestion that lawyers should literally concede that all but the litigation aspects of the practice may be done by nonlawyers as well as lawyers. Only lawyers in law firms or solo practice could then hold themselves out as being independent legal practitioners, however, offering the protection of the attorney-client privilege, the Rules of Professional Conduct, Supreme Court regulation, and ongoing competence standards. Others (including lawyers who choose not to practice in the "independent practice of law") would be regulated by ordinary consumer fraud restrictions and regulated by the attorney general. This controversial proposal frames the issue in its starkest terms: How long -- and how -- will lawyers be able to maintain their monopoly on "the things lawyers do"?

At best, the issue is remarkably complex, and no one has or will develop a single response that everyone can agree is the "right" response.

Neither I nor anyone else can pretend to have "the answer." Come to Duluth, hear the options, and register your vote. The bar will not face a more important issue for many years. I look forward to seeing you there.

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).