Document Type

Article

Publication Title

Minnesota Law Review

Volume

84

Publication Date

1999

Keywords

Disciplinary code, conflict of interest, client loyalty, multidisciplinary practice, core values rationale, core values

Abstract

Many of the legal profession's disciplinary rules are of venerable lineage. For example, the provisions of contemporary disciplinary codes concerning conflicts of interest derive from the 1908 Canons of Professional Ethics (Canons), which, in turn, can be traced back to late nineteenth century state ethics codes, to mid-nineteenth-century lectures and writings, 3 and to earlier common-law agency principles. Although lawyers to- day disagree about what the precise contours of the conflict rules should be, these rules embody basic principles of loyalty, competence and confidentiality that are fundamental, traditional, and universally supported by lawyers. These are defining principles for the practice of law. They are among the core values of the legal profession. The same cannot be said of the principles underlying the particular disciplinary rules that lie at the center of the debate about multidisciplinary practice. These rules are of relatively recent vintage. They provide that lawyers may not be employed by a corporation to render services to third parties, that lawyers and nonlawyers may not enter into partnerships to render legal services, that lawyers may not share legal fees with nonlawyers,9 and that lawyers may not aid nonlawyers in the unauthorized practice of law. The premise of these rules is essentially that, when lawyers practice law, they must avoid the corrupting influence of nonlawyers (other than, of course, their own clients); clients are best served by lawyers who preserve their "professional independence" by avoiding unholy alliances with the laity." Although this principle, equating professional independence with professional isolation, is neither fundamental, nor de- fining, nor universally shared by lawyers, those who oppose multidisciplinary practice rally under the banner of core values. Their argument is not that the restrictions embody core values, but that they protect core values such as "independence of judgment, loyalty to the client, preservation of confidences, competence, avoiding improper solicitation, and support for pro bono activities and improving the legal system." They raise the specter that, if the disciplinary restrictions are loosened to allow lawyers to ally more freely with other professionals-for example, to allow lawyers to practice law as partners and employees of accountants, or to allow elder law attorneys and social workers to become partners-lawyers are likely to succumb to the improper influence of their nonlawyers allies, sell out their clients, divulge client confidences, represent clients ineptly, violate solicitation rules, and disregard their public obligations. Opponents argue that, at the very least, advocates of reform should have the "burden of proof' on the question of whether the profession's core values could be preserved under a less restrictive regulatory regime. So far, the organized bar has tended to accept this argument, challenging proponents of multidisciplinary practice to prove that lawyers who ally with accountants or other professionals will continue to adhere to the legal profession's most fundamental norms. Perhaps it would be fair to assign reformers this burden if the applicable disciplinary restrictions had been devised in response to demonstrated harm caused by nonlawyers' exercise of influence over lawyers. A presumption in favor of the existing rules might also be warranted if the actual motivation for the restrictions had been to protect the legal profession's basic values rather than to thwart competition, or of the need for restrictions of this nature could fairly be characterized as a matter of popular wisdom, given the persuasiveness of the core values rationale for the restrictions or, at the very least, the legal profession's undivided and undeviating adherence to this rationale. As this Article discusses, however, the restrictions on multidisciplinary practice and the core values rationale for them have a more equivocal history.

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