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Utah State Bar
Multidisciplinary (MDP) Task Force
Minutes
January 6, 2000
In attendance: Mike Blackburn – Co-chair, Ray Westergard – Co-chair, Val Antczak, Brent Armstrong, Cindy Crass, George Harris, Mark Lehman, Jane Marquardt, Robert Merrell, Craig Omer, Mark Stevens & Toby Brown.
I Mike Blackburn asked the Task Force members to review the minutes of the November and December meetings. Motion was made, seconded and passed to approve these minutes.
II Mike notified the members that the Task Force would be presenting its findings to-date at the Bar's Mid-Year Convention. The Task Force is on the agenda for this program on Saturday morning, March 11th in St. George, UT. Mike encouraged any members who would be attending the convention to participate on this panel. As well, Mike mentioned a similar opportunity would occur in July at the Bar's Annual Convention.
Mike also noted that he would mention the Task Force efforts at the Estate Planning Council meeting on January 11th.
III Mike initiated discussion, picking up from where we left off at the December meeting. The first question we addressed was initially labeled a 'contract model' but was more correctly a 'referral model.' General consensus was that these situations were ethical, but lawyers should disclose referral relations to clients.
The second question faced was on lawyers employed at accounting firms. And finally we will address the full contract model of MDPs.
It was noted that many lawyers working for accountants and other non-lawyer owned companies do provide levels of direct legal service to clients of these companies, such as estate planning and insurance advice. Cindy Crass noted that these activities likely violate the fee splitting rule (5.4) and may facilitate the unauthorized practice of law (UPL). It was noted that the real issue for these non-lawyer companies is not ethics but liability. The public is generally unaware and unconcerned about ethical issues in these situations and more focused on results. George Harris expanded on the liability issue, adding competence as another issue for clients. Brent Armstrong noted that in the real estate industry, lack of competence by non-lawyers leads to more litigation. Val Antczak agreed that UPL is rampant in the real estate and many other industries. He questioned whether the Bar should be focusing its efforts on UPL and protecting lawyers' franchise to practice.
Mike noted that protecting the lawyers is an issue that should be addressed. Although Mark Lehman pointed out the enforcing UPL is unlikely given the Bar's resources. Ray Westergard noted that the standard in Utah for UPL may be lower than other jurisdictions, citing the ability of non-lawyers to close real estate deals. The increasing international nature of the practice of law was noted by Craig Omer. The changing nature, increased mobility and globalization of the practice of law are forcing change on the profession.
Brent commented on how the profession moved away from apprenticeships, which has had a negative impact of the value of a license. Robert Merrell commented that as a consumer he prefers MDP=type service. His real estate closing in Illinois cost $400 in attorney fees and he felt he received minimal value. Perhaps courtroom practice is only where restrictions are needed.
Cal noted that MDP's started with accounting firms and are now spreading. As well the Internet presents and major threat. Robert and Mike noted that we should either enforce the monopoly or allow lawyers to compete. Mark Stevens noted that CPA's have just gone through a similar process as the legal profession faces now. It was also noted that most Accounting firms now hire relatively few CPAs, instead hiring 'consultants.' Mike noted that of the 51 State CPA associations, only 10% of the Presidents list CPA on their business cards.
Mark commented that the Rules of Professional Conduct are driven more by litigation concepts than transactional ones. Jane Marquardt agreed that when her practice shifted from litigation to transaction, the ethical considerations changed as well.
Discussion followed on the ability of clients to make informed decisions about purchasing legal services. Brent commented that the disclosure of competence is not happening now within the profession. Discussion followed on the ability to create separate rules for litigators and transactional lawyers under some sort of barrister/solicitor schema. There would be difficulties in drawing clear lines between the two categories. Val noted that conflicts, even in transactional settings, can be far-reaching and difficult to define.
Toby summarized the discussions as follows:
1 – It is unpractical, given the resources available, to enforce UPL widely.
2 – The Rules of Professional Conduct need to be brought in line with the realities of current practice.
Brent noted that we might look to the CPAs for tools on doing this, as they have just completed such an effort. Finally, it was noted that through this transition, the income for CPA's has increased.
IV The next meeting was set for 7:30 a.m. on January 27, 1999.
V The Meeting concluded at 9:00 a.m.
The Next Meeting is set for:
January 27, 1999, 7:30 to 9:30 a.m.
201 South Main, #1800
(Please note the location change)
Last Update: 09/04/02
