Facing the inevitability, rapidity, and dynamics of change.

• Author: Berlin, Howard J.
• Position: Multidisciplinary practice of law - Florida

This report was prepared in accordance with the mandate of The Florida Bar Special Committee on Multidisciplinary Practice [the "full committee"]. The full committee is charged by the president of The Florida Bar with the responsibility of reviewing the Report of the American Bar Association's Commission on Multidisciplinary Practice,(1) published by posting on the commission's website, on June 8, 1999, as amended, and recommending to the Board of Governors of The Florida Bar the position it should take as a unified bar, and suggesting what position its representative members of the House of Delegates should take, on the ABA commission's recommendations for change to the Model Rules of Professional Conduct.

Believing that the truth is frequently best illuminated if strong advocates of differing sides present the best arguments for their respective positions, the full committee directed the Pro-MDP Subcommittee to prepare and defend a report advocating the adoption of some form of MDP in Florida, and the Con-MDP Subcommittee to advocate in a similar manner the rejection of the MDP practice concept.

On the surface, the positions of the two subcommittees are mutually exclusive. But as polarized as the two subcommittees' views may at first appear to be, the essence of the competing reports are facts and assumptions on which both subcommittees appear to agree. Not unlike the two sages attempting to describe an elephant, with each focusing on a separate limb of the animal, the two subcommittees have described the novel, complex, and illusive changes that have occurred in the marketplace for legal services from different points of view.

The Con-MDP Subcommittee submitted its report, Facing the Tide of Change, in December 1999. We commend the con subcommittee on a thoughtful and sincere report. Moreover, it should be emphasized at the outset that we agree with much of the con subcommittee's report.

We agree with those parts of the con report that speak to the historical evolution and contemporary significance of the so-called "core values" of the legal profession. We agree with the con report on:

1) The origin and importance of fee splitting prohibitions;

2) The policies designed to preserve the independent judgment of a lawyer;

3) The importance of the lawyer's duty of confidentiality;

4) The need to preserve the attorney-client evidentiary privilege;

5) The importance of the lawyer's duty of competence;

6) The significance of a lawyer's duty of loyalty to his or her client;

7) The importance of professionalism to the practitioner and to the profession;

8) The enforcing authority's duty (if not advisability) to enforce unauthorized practice of law and ethical proscriptions against those "lawyers in MDPs" who are engaging in "civil disobedience."

We share the desire of the Con-MDP Subcommittee for continuity--for the preservation of ethical values and traditions deeply rooted in the psyche of our profession.

Our disagreement is not based on opposite views, but rather on views that are the poles of the same argument. They see the practice of law from the perspective of the profession that it once was. We see the practice of law primarily through the prism of a modern day business:

* A business that is susceptible to the same market-driven forces as any other service business in the postindustrial, information-based global economy;

* A business that is subject to the same management principles and practices that are applicable to any other business of similar type or character;

* A business that is so impacted by the increasingly pervasive and rapid waves of change in technology and communication as to be almost overcome by the challenges and opportunities presented by such change.

Our view is that the con report fails to "face the tide of change," because it fails to understand the significance or implications of the dramatic and pervasive change in the marketplace on the practice of law as we have known it. Times have changed, and so has the delivery of legal services.

The con report favors the maintenance of the status quo, and argues that changes in the Model Code of Professional Conduct, as recommended by the ABA commission, should not be made unless there is presented "creditable evidence" or "persuasive argument" that such changes are in the public interest. The con report examines the reality of the current marketplace and "finds" no such creditable evidence or persuasive argument.

We believe the current marketplace is replete with creditable evidence and compelling argument supporting the ABA commission's recommendations and the related recommendations we have made in this report. Consider, for example, the following:

The free market is the best (indeed, the only) testing ground for a new product or service. As Peter F. Drucker(2) teaches, "The customer never buys what the supplier sells."(3) Quality and value are in the mind of the consumer; the supplier's perception of those matters is never the same as the consumer's. In a society where people have choices about goods and services, therefore, there is no sure way of accurately estimating whether the market will favor a new type of service until that service is actually available. The supplier's perception, let alone the perception of the governmental regulators of the legal profession, counts for little at this point. The jury is out until the consumer has a chance to vote with his or her pocketbook.

Some suggest that the market for legal services has not yet sufficiently demonstrated a "need" for an MDP-type of service delivery system; therefore, there is no reason to sanction any form of MDPs. But while the scarcity of empirical evidence(4) of a demonstrated market need is candidly acknowledged, it must be understood that the development of such empirical evidence has been severely hampered by the fact that MDP-type delivery systems are presently inhibited (if not prohibited) under the current Model Rules of Professional Conduct. No true measure of market need can be creditably done until the "taint of illegality"(5) has been removed and the market left "free to choose."(6)

If the market for legal services chooses not to purchase bundled services, or utilize the "one stop shopping" options made available by an approved MDP delivery system, then we will know "that the market, and not the legal profession acting as a regulatory gatekeeper, has found this delivery option wanting."(7)

The present number and scope of MDP-type practices throughout America (in Western Europe, in Canada, and in Australia) even in spite of the questionable legal and ethical footing on which such practice forms are currently based ("in the shadow of the law"(8)), demonstrates not only a need but also a rapidly growing one at that.

The positive support of the MDP delivery system(9) from such organizations as the American Corporate Counsels Association, consumer groups, two ABA sections and other groups who appeared before the ABA commission, and the support (possibly the endorsement) of four or more sections of The Florida Bar, must be seen by the skeptics as persuasive evidence of support for the MDP delivery system.

The uncontradicted opinion testimony of acknowledged experts in the disciplines of management, economics, strategic planning, and marketing collectively demonstrate that the delivery of legal services is a client-driven enterprise. The governmental regulators of the legal delivery system no longer control (if they ever did) the design, price, or efficacy of a legal product or service. The de facto emergence of MDP-type delivery systems--on the scale that presently exists in America--demonstrates that those regulators have but limited control over the structure of the delivery systems through which those products and services are presented to the market.

We view the opinion testimony of experts and the other supporters of the MDP concept, coupled with the number and scope of existing MDP "practices" already in the marketplace, as ample and persuasive argument in favor of our recommendations.

More importantly, however, we believe the debate over authorizing MDPs is a metaphor--in a sense concealing, but in reality describing, a more pervasive and urgent need for the profession to transform itself, or to use the proper management term, to "reinvent" itself--to reinvent the practice of law as an economic endeavor and the governmental system designed to regulate the practice of law in the public interest.

We believe that complete, systemic reinvention is required--if the profession and its surrogate in Florida, The Florida Bar--are to be capable of leading the public and the profession into the uncharted waters of the postindustrial, information-based, global economy.

Executive Summary

The Pro-MDP Subcommittee was charged with developing a report to advocate the adoption of some form of MDP in Florida. Our review of the ABA MDP Commission's report and research into the many changes taking place both within and outside the practice of law convince us that MDP is not only needed, but also is inevitable. Indeed, MDP is already a reality. The question is: How will the lawyers of Florida respond to the dynamic new marketplace for legal services? How will The Florida Bar, as an institution directly implicated by the ABA commission's recommendations, deal with the leadership opportunity presented to it and its officers and governing board?

We believe that The Florida Bar should focus on strategies that will enlarge the scope of law practice, as opposed to unnecessarily depleting the Bar's resources and energies by fighting over smaller and smaller segmented areas of practice. We must recognize that lawyers are in competition with those from other professions who recognize the need to change. More and more, consumers of professional services present lawyers with problems that are multifaceted and multidisciplinary in nature. Such problems require competent...