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Bar Journal - June 1, 2000

So, Now What Do We Do?

By:
 

© 2000 by the author. All rights reserved.

I am pleased to submit an article to the New Hampshire Bar Association Journal. I hope that lessons learned in Florida and by the ABA will help New Hampshire lawyers find a successful and meaningful 21st century practice. I treasure the memory of your warmth and hospitality extended to me as a speaker at your Mid-Winter Meeting. You are blessed with visionary leadership in your officers. I enjoyed meeting and talking with Randy Cooper, George Moore, Greg Robbins, and Peter Hutchins. You have an outstanding Executive Director in Jeannine McCoy. I look forward to the next opportunity to be with you.

In 1998, American Bar Association President Phil Anderson appointed a blue ribbon commission to study the multi-disciplinary practice (MDP) trend, one that has the potential to destroy the relevance and future of the legal profession. The Commission heard volumes of testimony, papers were submitted and the report was issued within the deadline. The American Bar Association MDP Commission voted unanimously in favor of changing Model Rule 5.4 to allow MDPs. The Florida Bar led the charge fighting the Commission's findings by asking for a delay and more study. The Florida Bar's position was first on the House of Delegates agenda because The Florida Bar asked for more study before the report was even released. The Florida Bar opposed the report without the benefit of reading it.

Soon the Commission will issue its third report, most likely recommending a lawyer-controlled MDP as the proposed model. Most experts believe the updated recommendations from the MDP Commission will fail by a large margin in the House of Delegates. The opponents of MDP will not change their position; they like to believe the market for legal services is lawyer-controlled when, in fact, it is client-controlled. They will find ways to explain why the U.S. is different from the rest of the world, assuring us that the growing MDP presence both inside and outside our borders has no effect on us. The ABA House of Delegates will consider the MDP issues resolved by calling for increased unlicensed practice of law (UPL) enforcement.

As a proponent of changing the MDP rules, I believe that regulation must follow the market, that markets never follow regulation, that the MDP issue is no more (and no less) than a metaphor for the need for the legal profession to adapt to a dramatically changing marketplace. So, now what do we do?

On Wednesday, April 5, 2000, The Florida Bar Multi-disciplinary Practice/Ancillary Business Committee (MDP committee) voted on two proposals:

  1. To amend Rule 4.5.4 to permit fee sharing only within lawyer-controlled MDPs. (In addition to the rule change to allow lawyer-controlled MDPs, the Pro-MDP committee also recommended a project to "reinvent" the Bar to be sure that legal services and ethical rules are appropriate for 21st century client needs.)
  2. To permit no amendments to Rule 4-5.4.

Eighteen of the MDP committee members were present to vote. The vote on proposal 1 failed by a vote of 11-7, and proposal 2 failed by a vote of 9-9. Two committee members voted no on both proposals.

The MDP issue then moved to The Florida Bar Board of Governors for debate and consideration on Friday, April 7, 2000. The Real Property, Probate, and Trust Law Section (largest section in The Florida Bar with approximately 7,500 members), the Business Law Section, the Elder Law Section, and the Tax Section all passed resolutions to the Board of Governors in favor of MDP. The Litigation Section and the Dade County Bar Association passed resolutions against MDPs. The Board of Governors asked each section chair or a designee to appear on April 7 to make presentations and to state reasons for their respective positions. The Board of Governors rejected the pro-MDP sections' positions out of hand.

The Florida Bar Board of Governors' debate on MDP followed the same formula that the MDP debate follows every time. Most of the governors believe that fee-sharing or co-ownership of an entity by members of different professions will destroy the law profession. These traditionalists believe that strict UPL and ethical enforcement will force lawyers working for CPA firms or insurance companies to either resign from the Bar or "come to their senses" and return to traditional law practice. The vote for no change in the MDP rule was 44-1.

I believe that The Florida Bar Board of Governors' strident views against allowing multi-disciplinary practice reflect deep fear, anger and denial about our profession's need to leave the comfort and safety of the current rules.

SO, NOW WHAT DO WE DO?

I have participated in the MDP debate as a member of The Florida Bar MDP committee and the National Academy of Elder Law Attorneys Ancillary Business/MDP committee, as chair of The Florida Bar Real Property Probate and Trust Law Section MDP committee, and as a member of The Florida Bar Elder Law Section MDP committee, and have made presentations in support of MDP for bar associations all over the country. As a proponent of MDP, I preach that we must be an inclusive profession and regulate attorneys practicing in multi-disciplinary settings. My position is in line with The Law Society of England, The Law Society of Ontario and many bar associations around the world. I may have educated some folks in the audience, but I have never seen a lawyer taking the anti-MDP position change his or her position. The other side doesn't make any sense to me, so I haven't changed my view either.

SO, NOW WHAT DO WE DO?

Will The Florida Bar's 44-1 vote keep competitors from continuing to encroach on our practices without allowing us the chance to compete because of Rule 4-5.4? Will this vote somehow change the rule of economics that says that regulation follows markets, but markets do not follow regulation? Will this vote help us to stop losing the talent war to CPA firms and other professional service providers? Will this vote stop us from losing major parts of our practice to outsiders engaging in "law-related services"?

The Pro-MDP subcommittee and the Con-MDP subcommittee did agree on a few things in addition to the dates of the meetings. We agreed that current ethical rules should be enforced. We agreed that core values should be maintained (although we never really analyzed or spent much time figuring out what those values are). We agreed that the Bar should adopt a slightly modified version of Model Rule 5.7 to allow lawyers to engage in ancillary businesses under some circumstances. We agreed that The Florida Bar should help lawyers understand the boundaries of Rule 5.7.

The Florida Bar Ancillary Business/MDP committee has undergone an interesting metamorphosis. It started out as a vigilante committee dedicated to "keeping our profession's core values." Obviously, the best way to keep us pure would be to tighten the rules and prohibit lawyers from engaging in any ancillary business. In 1998, the original committee was moving toward prohibiting ancillary business, but then some of us started to pay attention to the world around us. One by one, transactional lawyers pushed for appointments to the MDP committee until we started to have close votes and deadlocks. As one of the first transactional lawyers on the committee, I well remember the regular 24-1 and 23-1 votes.

The MDP committee members read thousands of pages on MDP. We held an All Bar Conference in early 1999 to air the debate to representative members of the Bar. Following the All Bar Conference, the MDP committee was divided into two subcommittees, one "Pro" and one "Con." The arguments on both sides of the MDP issue became passionate and strident, but no one on either side changed position. Each committee wrote long position papers and presented them at committee meetings. No one on either side changed position. At The Florida Bar Mid-year Meeting, the MDP committee set up a Town Hall Meeting. Each side argued its case, and the audience made statements and asked questions. Still, no one on either side changed position.

Now The Florida Bar Board of Governors has determined, effectively, that hunting season is open for transactional lawyers, and the hunters can be any service provider. As we try not to become wall trophies for the new law-related service providers, we are supposed to be comforted to know that UPL is there for us (the only thing there for us). Even though CPAs, insurance companies, banks, financial planners and others have been hiring lawyers to provide professional services in nontraditional settings for the last few years and there have been no UPL prosecutions of these alternative practices, we are to take comfort that the Bar may be gearing up for the next UPL violation. The Florida Bar's position is that there will be no UPL prosecution unless there is an allegation of harm to the client resulting from the unlicensed provider. I agree with that position. If the Bar leaders take on a "test case" with no real victim, it will look like one of the more obvious protectionist moves of all time, win or lose. There is no way the public will see such a move as being in the public interest.

The Florida Bar Board of Governors has effectively created two bars by its unwillingness to consider concerns of Florida's transactional lawyers in the MDP context, but the two bars are not trial versus transactional as you might expect. There is the Board of Governors' Bar (the Bar of the past) and the Bar for the lawyers not on the Board of Governors (the Bar of the future). Until the two Bars can come back together and try to develop a common vision, the Board of Governors' Bar will continue to prove its irrelevance to lawyers practicing in Florida. The Bar of the future has no formal organizational structure yet.

By the way, the competition has not called a time out. They are going forward, growing in numbers and laughing up their sleeves at how inept our profession is at dealing with a changing marketplace for legal and other professional services. We keep building higher walls and digging deeper moats to protect our fortress of professional exclusivity without considering that the outsiders are inside the fort, dining on our best silver and china.

SO, NOW WHAT DO WE DO?

Perhaps The Florida Bar's MDP experience can benefit lawyers and Bar leaders in other states. If you have not dealt extensively with the MDP issue personally, in your law firm, or in your state or local Bar, I have some suggestions for you before you take on the MDP issue directly. The MDP debate must be set aside until it comes back into context as part of the much larger set of issues that follow.

  • Study current trends and evaluate how each trend may affect law practice.
  • Globalization may affect every lawyer in every practice.
  • Information technology, particularly the Internet, is breaking down boundaries and changing relationships.
  • What effect will information technology have on the legal profession in the next 10 years?
  • What are the possibilities for lawyers in light of these changes? Is the World Wide Web likely to change law practice as profoundly as it is changing business practices?
  • List your basic beliefs about law practice as an individual, firm member and Bar association member.
  • What business are we in?
  • How do we measure success?
  • Who are our customers?
  • What do our customers want?
  • What new benefits will we offer customers over the next 10 years?
  • How must we reconfigure the client interface to provide more effective client access?
  • What are our competencies?
  • What new competencies will we need to create those benefits?
  • What are our core values?
  • What are the 10 things we believe about the legal profession? About our firm? About our practice?
  • Identify the implications of how we would act if at least half of our beliefs about the profession, the firm and the practice turned out to be not only incorrect, but also toxic to our future practice.
  • What is the vision for the future of the profession, the practice and the firm?
  • Are the visions for the profession, the practice and the firm aligned?
  • Where do the visions differ if they are not aligned?
  • Based on current trends, describe three scenarios for law practice in 2010.
  • How will law practice be regulated in 2010?
  • How will dispute resolution be handled in 2010?
  • Discuss how lawyers might learn to trust each other and to earn that trust so the public may once again trust lawyers.
  • What is impossible to do today that, if possible, would have a profound positive effect on the profession and the justice system?

When all of the above issues are decided, we will have invented the 21st century law practice, a practice that will be relevant, valuable and exciting, and that will usher in the greatest time in history to practice law. Martha Barnett, 2000-2001 president of the American Bar Association, proposes "Vision 2020" as a follow-up to the ABA's Seize the Future programs. Vision 2020 is a bold project to help lawyers, law firms, the judicial system and the Bar reinvent and reinvigorate our profession for the future. If we don't seek our own future, we will be forced to accept whatever future is handed to us. The Vision project will facilitate reinvention of our beloved profession. We must support ABA President Barnett as lawyers, firms and Bar associations across the country.

Do we have it in us to find our own future? Are we going to let others drive our vehicle to the future as our medical doctor friends did? They knew that health care delivery was going to change, but the American Medical Association made no proposals for a new health care delivery system. Managed care drove them to the future into a system that makes health care deliverers and health care consumers adversaries. Who is going to drive the legal profession to the 21st century?

So, now what do we do?

The Author

Attorney Charles F. Robinson, Law Offices of Charles F. Robinson, is a Board Certified Elder Law Attorney in Clearwater, Florida who specializes in elder law, including estate planning, asset protection planning, incapacity planning, Medicaid planning, probate and trust administration. He is a futurist with special focus on the future of the legal profession. He lectures on the future of the legal profession nationally and within the state of Florida. www.rclaw.com, http://www.rclaw.com.

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