"Professionalism" as Pathology: The ABA's Latest Policy Debate on Nonlawyer Ownership of Law Practice Entities
Schneyer, Ted, Fordham Urban Law Journal
Introduction I. The Formation and Elaboration of the Idiom of Professionalism A. Julius Henry Cohen's Early Articulation of Key Elements B. The Bar's Treatment of Lawyers' Business Entanglements from Cohen's Time to ABA Adoption of the Model Rules in 1983 1. In-house Counsel 2. Bar Rules and Policies on Lawyers' Business Entanglements that the Supreme Court Struck Down in the 1960s and 1970s a. Defending the Ban on Lawyer Participation in Group Legal Services Plans b. The Bar's Defense of Minimum Fee Schedules c. The Bar's Defense of the Ban on Lawyer Advertising C. The ABA's Pre-20/20 Debates on Whether the Model Rules Should Permit Nonlawyer Ownership of Law Practice Entities and Lawyer or Law Firm Ownership of "Ancillary Businesses" 1. The Kutak Commission's ALPS Proposal 2. Rejection of Proposals to Permit Lawyers to Practice in MDPs 3. The Ancillary Business Debate i. The Precautionary Principle ii. A Preoccupation with Motive iii. No Sense of Duty to Support Their Opposition to Lawyer or Law Firm Ownership of Ancillary Businesses with Available Evidence II. A Critique of the Idiom-Based Arguments the Opponents of Nonlawyer Ownership Made to the 20/20 Commission A. Six Elements of the Idiom of Professionalism That Are Salient in the Opponents' Arguments Against Nonlawyer Ownership B. A Critique of the Opponents' Idiom-Based Arguments Against the Working Group's Proposal 1. Proponents of Nonlawyer Ownership Must Bear the "Burden of Proof" 2. A Biasing and Selective Approach to the Use of Empirical Evidence 3. The Imperative to Ban Nonlawyer Ownership Categorically Rather than Permitting but Regulating a Modest Form of Nonlawyer Ownership 4. The Slippery Slope Theory 5. Unsubstantiated Concerns that Nonlawyer Ownership Will "Compromise Core Values" 6. Any Suggestion that Allowing Law Firms to Have Nonlawyer Owners Might Promote Competition in the Legal Services Market Is Out of Bounds III. Two Problems with Continuing to Treat the Idiom of Professionalism as the "Official Language" for the Bar's Policy Debates on the Rules that Should Govern Lawyers' Business Entanglements Conclusion
In August 2009, then-ABA President Carolyn Lamm established the ABA Commission on Ethics 20/20 to review the Model Rules of Professional Conduct (Model Rules), to consider whether changes were called for in light of the "globalization" of law practice and rapid developments in law-practice technology, and to make appropriate recommendations to the ABA House of Delegates. (1) In May 2012, the Commission submitted for consideration by the ABA House of Delegates proposed changes in the Model Rules and their accompanying Comments on six topics, (2) and on August 6, 2012 the House adopted all six proposals. (3) This Article concerns a proposal the Commission decided not to submit to the House.
To facilitate its work, the Commission formed seven working groups consisting of commission members and representatives from the ABA and other bar entities. Each group was to study a particular subject and develop recommendations. (4) One of the subjects was Alternative Law Practice Structures (ALPS), (5) which are for-profit entities in which lawyers practice law but which, unlike traditional law firms, are owned at least in part by nonlawyers. I served as a commission member and as co-chair of the ALPS Working Group. (6) Our primary task was to consider whether the Model Rules should be amended to permit lawyers to practice law in ALPS. …