Academic journal article Brigham Young University Law Review

At the Helm of the Multidisciplinary Practice Issue after the ABA's Recommendation: States Finding Solutions by Taking Stock in European Harmonization to Preserve Their

Academic journal article Brigham Young University Law Review

At the Helm of the Multidisciplinary Practice Issue after the ABA's Recommendation: States Finding Solutions by Taking Stock in European Harmonization to Preserve Their

Article excerpt

I. INTRODUCTION

"[A]n MDP [multidisciplinary practice] is an organization owned wholly or in part by non-lawyers which provides legal services directly to the public through owner or employee lawyers."1 The issues raised by the multidisciplinary practice of law are numerous and complex, and include international legal trends, economic pressures, consumer demands, the permanency of ethical codes, professional independence, and the scope of a state's power to limit the legal profession.

Possibly for these reasons, multidisciplinary practice has been deemed by many, including the president of the American Bar Association (the "ABA"), to be the most important problem facing the legal profession? Because the multidisciplinary practice of law has been functionally illegal in all fifty states,' the decision of whether MDPs are ultimately accepted or rejected has been analogized to a crossroads,' a cliff,' and to the historical situations of overconfidence

resulting in loss of industry autonomy, where doctors suffered in the 1990s, timberworkers in the 1980s, and automakers in the 1960s and 1970s.6

Traditionally, the discussion of the multidisciplinary practice of law has included lawyers and accountants as central players. Undoubtedly, this is because the larger accounting firms have provided the resources that initially fueled the call for allowing MDPs. Nonetheless, the proposal and issues discussed in this Comment are applicable in nontraditional contexts-including alliances between lawyers and insurance agencies, lawyers and health care providers, and so forth. "The MDP movement is not limited to accounting and law firms";' nor is it confined to the United States.8 It is an international phenomenon.

In fact, "[t]he International Bar Association appointed a standing committee to study MDPs in 1996, resulting in a September, 1998 resolution recommending that regulators allow MDPs so long as client and public interests are adequately protected."9 In 1998, the ABA appointed a special commission, the Commission on Multidisciplinary Practice (the "Commission"), to investigate and report on the viability of the multidisciplinary practice of law in America.10 Because the regulation of professions is largely within states' regulatory powers, some state and local bar associations have formed independent commissions on this issue.

In August 1999, the American Bar Association's Commission "recommended that the Model Rules of Professional Conduct be amended, subject to certain restrictions, to permit a lawyer to partner with a nonlawyer even if the activities of the enterprise consisted of

the practice of law and to share legal fees with a nonlawyer."11 This recommendation was based on "more than sixty hours of public hearings, listening to the testimony of fifty-six witnesses, and receiving written comments from interested individuals and organizations. ."12 Much of the Commission's research was based on the experiences of European countries that, to some extent, have allowed MDPs.13 Nonetheless, the ABA ignored the recommendation of its own MDP Commission, which it then disbanded, and recently decided to maintain an anti-MDP policy.14 This appears to be an effort to uphold the "traditional" values of the legal profession, in an atmosphere where the Commission is no longer needed to explore MDP alternatives.

By withdrawing national support from the exploration of MDP alternatives, the ABA has surrendered an important role in developing a meaningful approach to the multidisciplinary practice issue. Categorical rejection of MDPs is not a tenable solution, as evidenced by the many states unable to reconcile the ABA's anti-MDP policy with all of the evidence suggesting that the time for MDPs has come. 15

One of the major underpinnings of this issue is the scope and intensity of the regulations to which a regulating authority may subject the legal profession. Many have challenged the scope of "state su

premacy in the regulation of lawyers. …

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