Utah State Bar

 Multidisciplinary (MDP) Task ForceMinutes

March 9, 2000

Utah Law & Justice Center

In attendance: Mike Blackburn - Co-chair, Ray Westergard - Co-chair, Charles R. Brown, George Harris, Jane Marquardt, Toby Brown and  Charles Bennett (invited guest).

I  Mike Blackburn welcomed everyone and asked for a review of the minutes  from the January 27, 2000 meeting.  It was decided to defer voting on minutes  until the April meeting.

II Reports:

Charles R. Brown reported on the various bar leadership conferences he has attended.  All of these meetings have included an MDP component, including the Western States Bar conference held last week.  MDP will also be a major topic of discussion at the Utah State Bar Commission Retreat to be held in early May. 

Mike reported that a current Utah Ethics Opinion (99-07) out for comment has opened the door for referral fees, under limited conditions.  Charles R. also  added that an ethics opinion prohibiting partnering with non-lawyer real estate professionals is under consideration.

Charles Bennett was invited to report on the recent American College of Trust  and Estate Counsel (ACTEC) meetings on MDP.  Sherwin Simmons, the Chair of the  ABA Commission on MDP, reported at the ACTEC meeting that the Commission will be  coming out with a modified recommendation soon.  This new version will not contain a definition of the practice of law, which has been highly controversial.  Mr. Bennett noted that he serves as the in-coming chair of ACTEC's Professional Responsibility Committee.  This committee is focusing on two points: 1 - Can we stop MDP?, and 2 - If we cannot stop it, how do we  preserve core values?  The discussions have leaned towards defining two types of  lawyers: traditional and MDP, with each having different rules and rights.  One issue they have addressed is that MDPs bring immediate benefits to clients,  whereas traditional legal services have more long-term benefits.  This  highlights a need to educate the public about the long-term benefits of lawyer-based services.  He commented that Mr. Simmons (who is also a member of ACTEC) noted a shift in the dialogue towards a "consent and disclose" approach.  This approach has clients waiving their rights on conflict, independence, etc. in an engagement-type letter with an MDP.  Mr. Bennett also noted that ACTEC sees the insurance and financial services industry as a greater market threat  (as opposed to accountants).  Discussion followed.

Mike pointed out the need for the profession to have alternatives in re: to  MDP models.  If the only model presented is a fully-integrated MDP, lawyers will  likely respond negatively, so we need to educate our members on a variety of  alternatives on MDP.  Toby commented that efforts to educate the public about the benefits of traditional legal services will be competing with multi-million  dollar marketing efforts.  Mr. Bennett said that ACTEC has considered partnering  with CPAs in education efforts, to leverage resources. 

Ray Westergard passed out a handout on the number of lawyers employed by Big 5 accounting firms.  Discussion followed on how bigger law firms actually have a competitive advantage under current rules, as they receive 'referral fees' when  referring work inside their own firms.  Mike commented that solo/small firm  lawyers can do this, but with greater burdens.  Charles R. referred to an article by Kate Toomey on how to accomplish this referral fee arrangement in solo/small firm situations.  Jane Marquardt noted that practice differs greatly  from the rules on this issue.

Charles R. requested that Mr. Bennett prepare a summary of the ACTEC discussions for the MDP Task Force.  He agreed to do so.

Toby reported that his presentation to the National Association of Bar Executives in February in Dallas struck an MDP nerve.  Although the focus of the presentation was on technology, it tied it to the issue of lawyers being able to compete in the new E-commerce/MDP world.  This demonstrates the heightened awareness of MDP and competition issues for bar members.  As a result Toby has received numerous requests to speak at bar associations across the country.

Toby also attended a meeting in Dallas sponsored by the Coalition for an Independent Profession.  At this meeting the organizers presented two concepts.  First they had a lawyer from Spain present on the 'myth' that MDPs are prevalent in Europe.  He stated that a variety of MDP situations occur in Europe and that there is not consensus on MDPs there.  Second, a Professor emeritus presented a  litigation approach on how to stop MDPs.  Since bars have limited jurisdiction over unauthorized practice of law, he recommended strong enforcement of current ethics rules to stop lawyers from participating in MDPs.  Toby said he commented to the group on the need to focus the dialogue on helping lawyers compete in the new market or risk having them not be participants, thus leaving clients without effective access to legal advice from lawyers.  He also addressed the issue  about the lack of empirical data on the demand for MDPs by clients.  He suggested this evidence would only exist after the market had shifted away from  lawyers.  Thus lawyers need to act now to adapt to the shifting market.

III Mike suggested that due to time constraints and a limited number of  attendees at today's meeting that we defer discussion of the contract model for the next meeting.  This suggestion was approved.

 Discussion followed on goals for the Task Force.  Mike and Ray noted that the Task Force's original charge likely needs to be revised.  They will discuss  this need with Charles R. and Dave Nuffer on Saturday at the Bar Convention.  George Harris noted that our Task Force seems to have general consensus on most  of the issues we have discussed and that maybe we could move to action items.   Toby suggested that Mike and Ray craft two or three questions to be presented to  the Task Force via e-mail prior to the April meeting.  These questions could  then be directly addressed at the next meeting.

The next meeting is set for:

April 6, 2000 at 7:30 a.m. at the Law & Justice Center.

Meeting adjourned at 9:00 a.m.

Last Update: 09/04/02