The Future of the Profession?
By Charles F. Robinson
The 1999 Florida All Bar Conference (was) held in Tampa in February. The single subject of the conference (was) ancillary business (or multidisciplinary practice). Florida Bar President Howard Coker had taken a strong stand against law firms engaging in ancillary businesses in his President's Column in the November 1998 Florida Bar Journal. (Coker’s term as president ended in June.)Two years ago, bar President John Frost appointed a committee, chaired by Martin Garcia of Tampa, to study the ancillary business issues. The committee presented a half-day seminar at the 1998 Florida Bar Convention, and took testimony from interested bar members. I testified before the committee. As the resident Real Property, Probate, Trust Law/Elder Law gadfly, I ended up as a member of the Ancillary Business Committee.
The American Bar Association adopted the first version of Model Rule 5.7, proposed by the Litigation Section, by a narrow margin in 1991. The rule prohibited ancillary services unless the ancillary services related to the provision of legal services to existing law firm clients. The rule was divisive to the point of nearly fracturing the ABA into barrister and solicitor organizations. It was defeated in 1992. No jurisdiction adopted the rule in its one-year life.
The ancillary business issue reappeared in 1994 with passage of the current Model Rule 5.7. The rule now reads as follows: 5.7 Responsibilities Regarding Law-Related Services (a) A lawyer shall be subject to the Rules of Professional Conduct with respect to the provision of law-related services, as defined in paragraph (b), if the law-related services are provided: (1) by the lawyer in circumstances that are not distinct from the lawyer's provision of legal services to clients; or (2) by a separate entity controlled by the lawyer individually or with others if the lawyer fails to take reasonable measures to assure that a person obtaining the law-related services knows that the services of the separate entity are not legal services and that the protections of the client-lawyer relationship do not exist. (b) The term "law-related services" denotes services that might reasonably be performed in conjunction with and in substance are related to the provision of legal services, that are not prohibited as unauthorized practice of law when provided by a nonlawyer.
The ancillary business issues are "déjà vu all over again." Florida has not adopted the ABA Model Rule adding regulations to lawyers or law firms engaging in "law-related" services. As a matter of fact, only the Virgin Islands has adopted the Model Rule verbatim. Pennsylvania has a version of the rule, and another version is under consideration in Tennessee. The rest of the states, including Florida, seem to be satisfied that we already have enough regulation.
I have been struggling with the dispute over whether, and if so, to what extent should lawyers engage in "ancillary businesses or services." The more I learn, the less I know about this subject, however.
What are legal services as opposed to law-related services (Model Rule 5.7 term) as opposed to nonlegal services (Pennsylvania Rule 5.7)?
Model Rule 5.7 Comment [9] lists "providing title insurance, financial planning, accounting, trust services, real estate counseling, legislative lobbying, economic analysis, social work, psychological counseling, tax return preparation, and patent, medical or environmental consulting" as examples of law-related services. Pennsylvania doesn't define nonlegal services but uses the same examples in its Comment as the Model Rule.
I am an elder law attorney, certified as an elder law specialist by The Florida Bar. I help families in crisis with issues surrounding chronic illness, asset protection, life planning choices and estate planning. All of the services I provide (except for direct legal advice and an occasional trip to probate court) are law-related services. Scary thought.
Transactional lawyers are in direct competition with nonlawyer providers. This is the age of "disintermediation," a $5 word that means "cut out the middle person." Corporate America has dealt with disintermediation for the last several years, where it often means downsizing through reduction or elimination of middle management. Real estate lawyers have competition from disintermediators looking to "one stop shop" the real estate transaction. Realtors, lenders, and Internet shopping services all compete to be the point of sale and all want control of the transaction. Nearly all services would be considered law-related if a lawyer is part of the picture. None of the services are protected by Unlicensed Practice of Law (UPL rules).
CPAs and financial planners want to control the estate planning process with their law-related services. The lawyer estate planner has the exclusive opportunity to draft the documents. Document drafting in complex estate planning situations requires a high level of expertise, but has the lowest perceived value from the client's perspective. Clients tend to believe that lawyers buy "magical" forms that jump out of the word processing system on command with little lawyer effort. The planning part of the planning effort is where the perceived value can be found, not in the drafting. UPL cases have protected the drafting part of the process as law practice. As estate planning attorneys, we paint ourselves into a tiny corner if documentation is the only role we are fighting for.
How much exclusivity do litigators have in the dispute resolution process? At this time, only lawyers go to court representing third parties. However, litigation has become expensive beyond the means of all but the wealthy. Alternative Dispute Resolution (ADR) places more emphasis on factual resolution and minimizes the requirement of knowing and understanding the law. The lawyer plays a major role in ADR, but not an exclusive role.
Mortgage foreclosure practice has been impacted by efforts to "delawyer" the practice. Pro se appearances are growing at an astounding rate. The Florida Supreme Court is committed to public access to the court system. The majority of family law cases in the Sixth Curcuit now are pro se on at least one side. The court offers checklists and forms for pro se dissolution of marriage and other family law court proceedings. The checklists and forms are more complete and helpful than those used in many law offices.
In the traditional litigation practice, law-related services such as legal research, investigation, graphical representation, and jury profiling make up the vast majority of the time that goes into a case. Only direct client advice, settlement and other direct negotiation, and court appearances require a lawyer license. In an effort to maintain exclusivity, is the trial bar really in favor of limiting ancillary services?
Our bar must decide whether we should expend our energy defending the old ways by defending the past, or should we look to the future and together create the 21st century practice for all areas of practice for the good of the public and the profession. We are competing with law-related service providers whether we like it or not, and the other service providers are not constrained by the ethical rules governing lawyers.
I believe The Florida Bar must examine ethical rules with a prejudice toward reducing regulation rather than increasing it. Lawyers we look up to will always act with personal integrity. Perhaps personal integrity should be the standard for practice in the 21st century rather than an attempt to regulate conduct when that regulation is not truly protecting the public.
(Reprinted and excerpted with permission from Charles F. Robinson, Copyright 1999. All rights reserved.)
The author is principal in the Law Offices of Charles F. Robinson, Clearwater, Fla. He is past chair of The Florida Bar Elder Law Section and the ABA Law Practice Management Section, and is a member of The Florida Bar Special Committee on Ancillary Businesses of Law Firms. Robinson is a futurist, who has written and lectured extensively about the future of the legal profession.
By Charles F. Robinson
I believe it is time to leave the past and embrace the future of the profession. What can the American Bar Association do to lead the profession into the 21st century?
1. The Commission on Multidisciplinary Practice must make clear recommendations in its report to eliminate the ethical constraints that prevent ethical lawyers from full competition with other service providers.2. Allow consumers to determine the amount of regulation needed in the areas of conflict of interest, multidisciplinary practice ownership and solicitation.
3. Replace current Model Rules with aspirational guidelines of professionalism, including honesty, integrity, competency and service.
4. Appoint a commission or task force with continuity to help the profession study and envision the future. The Commission on the Future of Law Practice (hereinafter "Futures Commission") should report to the Board of Governors and make recommendations on how to teach the profession to change and thrive in the next century. The Futures Commission should develop model curricula and material to assist state and local bar leaders to find the future. Law schools and ACLEA should be represented on the commission. Commissioners on the Futures Commission should be representative of areas of law practice as well as disciplines other than law.
5. As we begin to implement change, we must look at strategic future issues such as:
a. Are we bringing the profession together or fragmenting it further?
b. Are we driving the profession up or down the food chain?
c. Are the current structures of the organized bar appropriate to support and enhance the future of the profession?
d. Are we continuing our reliance on regulatory exclusivity or dominance where appropriate?
e. Are we losing or capitalizing on our history?
Sherwin Simmons (chair of the ABA Commission on Multidisciplinary Practice) reported on the commission’s work at a recent Florida bar meeting. He observed that the ABA House of Delegates’ action on the commission’s final report will be a watershed decision determining how law will be practiced in the U.S. in the next 100 years. Your preliminary report certainly holds that promise.
Reprinted with permission from Charles F. Robinson, Copyright 1999. All rights reserved. Excerpted written testimony to the ABA Commission on Multidisciplinary Practice, Feb. 5, 1999, hearings, Beverly Hills, Calif.
