August 2001
by Edward Poll, J.D., M.B.A., CMC
NEWS FLASH: NEW YORK HAS ADOPTED MDP! This recent news prompted me to look at this issue again, and write the following:
I was reminded the other day of the opening salvo of the House Un-American Activities Committee when, in a very brusque voice, Sen. Joseph McCarthy asked, "Are you now or have you ever been a member of the Communist Party?" The same refrain, with almost the same pejorative connotation, is being asked today of many lawyers. "Are you now a member of a multi-disciplinary practice group?"
Now, as in earlier times, the question seems to beg the issue. Lawyers traditionally were well versed in many disciplines - in fact, the "Renaissance man" concept might have been applied to lawyers. Lawyers had to know many things about many subjects in order to advise our clients well. Since lawyers were the "counselor", not just the lawyer, of the client, the lawyer had to have many skills. This is more difficult in today's world of specialization. The general practitioner, or counselor, is facing greater pressures ... and must gather people of many skills around him/her in order to effectively represent clients.
We are facing competition from accountants, among others, who are now vying for the title of "counselor". And that places lawyers in an almost untenable position. Our rules of professional conduct forbid lawyers to "share fees" with non-lawyers. In fact, many jurisdictions prohibit the sharing of legal fees with anyone, even with other lawyers, except as the pro-ration may be based on actual work performance for the benefit of the client. And yet, our clients want us to refer to, include and participate with other professionals where appropriate. They want the leader to be responsible for the team. And that's where the accountants have seized the opportunity at the moment. In order to serve our clients better, and to protect our traditional role, lawyers must return to the leadership role we once had.
In order to do this, it seems to me that we must, among other things, do the following:
- Be competitive with the pricing of our services
- Bring other professionals into the circle of opportunity when appropriate to serve the client's needs. This may mean that the client pay the other professional directly, and it may mean that we pay the other professional from our own revenue
- The rules of professional conduct must be revised to affirmatively permit the lawyer to engage the services of other professionals without it being considered a sharing of fees
- Where work is taken on contingency, the other professionals should be permitted to share in the percentage without violating the rules of professional conduct
It seems to me that fear of sharing fees with others has caused our focus to be a bit jaundiced. We are looking at accountants with fear rather than as a wake-up call to do what we do best ... gather the team for the protection and improvement of the client's interests. If we do this, we benefit and the client benefits.
One of the main reasons for prohibiting the MDP concept is that the client's confidences will be violated. While this privilege is an important distinction and differentiation in the role of the lawyer as compared to others, the privilege can be retained if the lawyer is the head of the team since all of the lawyer's employees, staff and agents fall within the privilege. Further, the privilege has been eroded in a number of important areas ... so much so that one might legitimately wonder whether the privilege still exists.
The discussion ultimately focuses on best serving the clients' needs. The rules of professional conduct must allow lawyers to do this in the most effective way possible. Our discussion must now turn to how we can retain (or retake) the privileges that are important to the clients' interests rather than merely saying "no"! As we have seen in another context, "Just Say No" doesn't work. Taking the offensive in this competitive battle will bring the lawyer back into the proper perspective of serving the clients' interests, not fearing a competitive turf battle!
