Vol. 30, No. 3
CBA President's Message to Members
by Dale R. Harris
Barely six months in the ground, MDP already is
scratching and clawing at the coffin lid as some state
bars begin resurrecting it with their own versions.
—ABA Journal (Feb. 2001)
CBA President Dale Harris (left) and
host John Wendt at the Delta County
Presidential Visitation last summer.
Loudly proclaiming that "this profession is not for sale!" the anti-MDP (multidisciplinary practice) forces resoundingly defeated efforts to keep the MDP discussion alive at the American Bar Association meeting in July 2000 in New York. Instead, the House of Delegates decided that lawyers should not be allowed to share fees and engage in partnerships with other professionals, called for more enforcement of laws against the unauthorized practice of law, and summarily discharged its own MDP Commission.
Having thus attempted to drive a stake through the heart of MDP, are we to assume the issue is dead and that we shouldn’t waste any more breath and ink on it? I don’t think so. As the above quotation suggests, we had better stay tuned because we are going to hear more about this and other related movements to bring law and other professional services closer together under one roof.
Where Have We Been?
Let’s review how we got here. In 1998, the ABA created a Commission on Multidisciplinary Practice ("Commission") to study the growing phenomena of accounting firms acquiring law firms abroad, of lawyers leaving law firms in this country to practice "tax consulting" in accounting firms, and other affiliations and alliances between lawyers and non-lawyers. After a year of study and hearings, the Commission proposed that the Model Rules of Professional Conduct be revised to permit fee sharing and partnerships between lawyers and non-lawyers.
The Commission’s proposals set off a flurry of activity among state and local bar associations who were invited to weigh in on the subject. The hot-button issues were whether the rules could be revised to permit MDPs without abandoning our profession’s core values, particularly a lawyer’s independence of judgment, loyalty, confidentiality, competence, and commitment to pro bono services.
Almost all states, including Colorado, launched their own task forces, commissions, and committees to study the issues. The joint CBA/DBA Task Force was one of the few to complete its work by the time the ABA House of Delegates met in July. Both the CBA and DBA governing boards had approved the Task Force recommendation that the Colorado Rules of Professional Conduct be amended to "accommodate" MDPs, provided it be done in such a way as to protect the public interest and preserve our core values.1
Where Are We Now?
Most other states were still studying the issues when the ABA took its vote in July. What has happened since then? Did the ABA succeed in stamping out this "nuisance"? Apparently not. Two articles in the current ABA Journal make the point. One article2 discusses the renewed emphasis some law firms are putting on "ancillary businesses," sometimes called "law-related services," as a way around the limitations on "pure" MDPs. The article quotes John Tredennick, who heads CaseShare Systems, a spin-off from Denver’s Holland & Hart, which supplies computer technology to help lawyers communicate with clients:
There’s nothing the ABA House of Delegates can do to stem the tide . . . the market forces are so powerful it’s mind-boggling . . . [CaseShare] is an MDP by another name.
The second article3 reports yet another creative move by the accounting profession to break out of traditional molds and enter new markets, including the legal marketplace. Their national association, the American Institute of Certified Public Accountants ("AICPA") is spearheading a project to create a new global business credential, tentatively called a "cognitor." A credentialed person or firm would act as a "general contractor" who would subcontract work out to a network of professional service providers, such as architects; engineers; accountants; lawyers; and marketing, advertising, and public relations firms.
Where Are We Going?
The cognitor project illustrates a stark reality: the national leadership of the accounting profession is light years ahead of the national leadership of the legal profession in planning for a rapidly changing world. Listen to Robert Minto, Jr., president of the Attorneys Liability Protection Society:
The legal profession has failed or refuses to recognize that we are no longer driving the train. The public is. They can now choose where to get their legal services, and they have found that they can get a lot of what they want from non-lawyers, often at a lower cost.4
Moreover, Ernst & Young—which last year "financed" the establishment of a law firm in the District of Columbia—now reports the establishment of Donahue & Partners, a New York- based law partnership that provides foreign legal advice on business issues to Ernst & Young’s clients.5 The other large accounting firms reportedly are considering similar moves.
These and other similar developments mean we must "think again" if we believe the ABA succeeded in laying to rest any need to consider these new ways of delivering professional services. The fact is, it’s a whole new world out there, whether we like it or not. We must not abandon the core values of the legal profession, but we simply cannot be in denial about what’s happening.6 We need to participate in shaping our own future. If we don’t, others will shape it and control it for us, and we may not like the results. To our credit, the CBA/DBA Joint Task Force on MDP is continuing its work under the leadership of new chairs Doug Foote and Neil Peck.7 Its various subcommittees are tackling the hard, "dirty" work of digging into the details of these issues.8 I believe Colorado’s lawyers will be leaders in the effort to make sense out of all this confusion.
No matter how this all turns out, it promises to be an interesting time. Stay tuned.
1. See "Report of the CBA/DBA Joint Task Force on Multidisciplinary Practice (‘MDP’)," 29 The Colorado Lawyer 53 (July 2000); "Minority Reports of the CBA/DBA Joint Task Force on Miltidisciplinary Practice (‘MDP’)," 29 The Colorado Lawyer 21 (Sept. 2000).
2. Gibeaut, "Cash Boughs," 87 ABA Journal 50 (Feb. 2001). This article also reports on the continued efforts of some state bar associations to come to grips with the MDP issues.
3. Hansen, "A New Credential," 87 ABA Journal 18 (Feb. 2001).
4. Id. at 19.
5. Rosenberg, "E &Y Forges into the Lead with New York-Based Law Group," National Law Journal (Jan. 15, 2001).
6. See Keatinge, "Colorado and Denver in the House: MDP Declared Heresy by the ABA House of Delegates," 29 The Colorado Lawyer (Sept. 2000) at 48; Keatinge, "Change Favors the Prepared Mind," 6 Whoops! 1 (Jan. 2001).
7. Not all members of the Task Force believe there is a need to continue this work. See Rothrock, "What’s the Rush?" 6 Whoops! 1 (Jan. 2001); "Minority Reports," supra, note 1.
8. The Task Force has added to its agenda consideration of issues such as ancillary businesses and multijurisdictional practice ("MJP"). It may be that MJP will present more immediate and pressing needs for thoughtful rule changes because so many lawyers cross state boundaries in their practice, both physically and through communications and the wonders of the Internet.
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