Minutes

May 4, 2000

In attendance: Mike Blackburn – Co-chair, Ray Westergard – Co-chair, Cindy Crass, George Harris, Mark Lehman, Jane Marquardt & Toby Brown.

I Mike Blackburn welcomed members and asked for comments on the minutes of the April 13, 2000 meeting. Theses minutes were approved.

II Mike recapped the discussion from the April 13 meeting. The conclusions reached were: 1 – The contract model of MDP is ethical under current rules if done properly 2 – We should move forward into full MDPs, further defining this concept. Two steps were defined for that process: 1- Create a statement that recognizes contract MDPs as ethical for the Bar to approve. 2 – Explore methods for rewriting the ethics rules.

Cindy asked for clarification on how exclusive referrals in the contract model would impact independence of judgment. Discussion followed on how exclusive referrals would include opt out options for independence issues.

Jane followed this discussion with a question about the sharing of information between lawyers and others after an MDP exists. George commented that the duty to protect client information still exists. Cindy pursued this line of reasoning with a question about ‘privilege’ in an MDP. Discussion followed on how these issues will need to be addresses and defined for full MDPs. Discussion then followed on how the contract model statement may need to flesh out these issues. Toby recalled Val’s concern about having a clear, simple statement on contract MDPs in order to create a level playing field for lawyers. Ray agreed that this approach would assist solo/small firms in competing with larger firms.

Discussion then turned to how to rewrite the ethics rules. Cindy commented about the issue of rewriting rules that may not be enforced. Mike comment that even if rules are not strictly enforced, they set expectations for behavior and ultimately malpractice. George agreed that most lawyers follow the rules based on these expectations.

III Mike turned the discussion to our rewrite of the rules. George was charged with categorizing rules for assignments to various Task Force members. After review, George is recommending that the group utilize work already complete by the ABA MDP Commission. A potential approach would be to review the ABA recommendations, then look at proposed rule language and move forward from that foundation. It was agreed to move through the ABA recommendations and approve, modify or reject them. This effort would establish a platform from which we could evaluate ABA rule language proposals and then potentially offer our own.

Mike then directed a review of the ABA list of recommendations (found at http://www.abanet.org/cpr/mdprecommendation.html).

Recommendation #1 was read and approved unanimously.

Recommendation #2 was read. A discussion followed on fee splitting and lawyer supervision by non-lawyers. Mark noted that the current rules already allow for fee splitting with non-lawyer administrative personnel through profit sharing plans. #2 was approved unanimously.

Recommendation #3 was read. Discussion followed on the difference between #3 and the ‘contract model MDP.’ Mike proposed that we conditionally approve #3, presuming that effective safeguards are possible. This was approved unanimously.

Recommendation #4 was read. Discussion followed on defining legal services and the current role of paralegals. It was proposed to add the following language to #4: “except under the direct supervision of a lawyer.” With this addition, #4 was approved unanimously.

A discussion on the issue of lawyers performing consulting work followed. At issue: Certain non-lawyers provide services to clients that do not fall under the UPL guidelines. However, when lawyers perform these same services, they are held to the legal ethical standards. This may handicap the ability for lawyers to serve clients, and thus push clients to non-lawyers for these services. It was decided to hold this discussion for a later date.

Recommendation #5 was read. Mark commented that when lawyers provide non-legal services, they should not be held to the rules of professional conduct standards. #5 was approved unanimously.

Further consideration of the recommendations will continue at the next meeting.

IV Meeting concluded at 9:00 a.m.

The Next Meeting is set for:

June 6, 2000, 7:30 to 9:30 a.m.

Utah Law & Justice Center

(Bagels will be served)

Last Update: 09/04/02