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Boston Bar Association President Joan A. Lukey says the association is now for the first time focusing on proposed rule changes relating to multidisciplinary practice. Honing in on the possibility of requesting a change to attorney ethics rules, the Boston Bar Association Council postponed action on a report favoring multidisciplinary practices (MDP) until its July meeting. The final report of the BBA Multidisciplinary Task Force, submitted to the association’s governing body several months ago, was formally presented for a vote on June 12 by co-chairman John R. Regier, a business and finance attorney at Mintz, Cohen, Ferris, Glovsky and Popeo in Boston. The final version substantially follows last year’s interim report in recommending that multidisciplinary practice be permitted. It calls for an amendment of Professional Conduct Rules 5:4 and 5:7 to permit fee-sharing and financial interests in legal outfits to be held by nonlawyers, so long as attorneys retain control and managerial authority over the firms themselves. An issue upon which the members of the task force could not reach agreement was how to govern lawyers who are already, in effect, practicing law in nonlegal settings, such as investment or accounting firms. The proposed rules, said Regier, would at least address the situation that currently exists, given that multidisciplinary practice is a reality in Massachusetts. LARGE FIRM VS. SMALL FIRM Pending approval by the BBA, the next step would be to approach the Supreme Judicial Court to request a rule change. BBA President Joan A. Lukey said that she believes this to be an important issue, and that she is aware of only one other instance, some 15 years ago, in which the BBA voted to submit a rule change to the SJC. She also noted that, when this matter was considered after the submission of the Task Force’s interim report, the BBA Council concentrated on the report itself and not on the attached proposed rules. At this point, because the task force has issued its final report, the BBA is now, for the first time, really focusing on the proposed rule changes. Discussion from the floor focused on the actions of other bar associations nationwide, specifically that of the American Bar Association. Not only did the ABA overwhelmingly defeat a proposal to permit multidisciplinary practices in the summer of 2000, its delegates indicated that they would like to see the judiciary bar such practices. Regier acknowledged that, if the BBA requests a rule change, it would be one of only five other states to adopt such a revision. In general, he said, state bar associations are against such changes, whereas city bars — which tend to have more major law firms as members — are more supportive of MDPs. Multidisciplinary practice has been viewed as an issue of large firms versus small firms, because large firms would be better able to benefit from the rule change by launching ancillary businesses such as investment and accounting services. Small firms would likely be less able to offer diversified services because of the expense involved. Previously, Regier has said he does not foresee this issue as a problem, because a rule change “empowers all law firms to compete with nonlawyers providing these same services.” BBA President Lukey noted that “The task force has put two years into [this issue], and I would rather have people feel comfortable with the vote. We can make this the focus of the July meeting.” The group will next be in session on Tuesday, July 10. DEBATING VOIR DIRE In another debate, Superior Court Judges Carol S. Ball and Peter M. Lauriat headed a discussion on lawyer voir dire, which is currently a “hot issue” in Massachusetts. Currently, the commonwealth has no system of direct voir dire by lawyers, but a system in which lawyers submit written questions to be administered by the judge. Lauriat said the matter is raised by the plaintiffs’ bar “every year.” The current proposal has been filed as House Bill 477. Lauriat noted that the judiciary had not been invited to the committee hearing at which the bill was discussed, and that no one spoke against the bill. “My main concern,” added Lauriat, “is that jury selection will take longer than the trial.” Commenting on a study of jury verdicts by the U.S. Department of Justice, Lauriat said, “Of 75 major metropolitan counties, the four with the lowest rate of plaintiff’s verdicts were four counties in Massachusetts.” While the plaintiffs’ bar argues that this is due to the lawyers’ inability to conduct direct voir dire, Lauriat said he sees this figure as due more to the one day/one trial system, and as the result of “intelligent juries” in Massachusetts. The judge also cited concerns about jury privacy, including protecting juries from the media in high-profile cases. Ball, however, maintained, “I think of myself as a trial lawyer, and from that perspective, anything that is aimed at eliminating bias is good.” Still, she questioned whether direct voir dire is intended to eliminate bias or “build it in.” She also said that voir dire by judges is “a cultural thing” in Massachusetts, and that training would be needed to implement direct lawyer voir dire. But her main concern, she said, is the administrative issue of how direct voir dire would be implemented. “It could add on four or more hours to our current system of trials.” PROS AND CONS Attorneys in the audience talked about their experiences in other jurisdictions that allow direct voir dire. Attorney Michael B. Keating described a trial in Connecticut in which it took two days to empanel eight jurors. In that case, there was no judge present during the voir dire, which mostly consisted, said Keating, of “schmoozing” time. Several other attorneys agreed that the intention of direct lawyer voir dire seemed to be to build bias into the trial, rather than eliminate it. Attorney Robert J. Muldoon called his experience with it, in a case in New York, “dismal.” “It was bizarre, and an unfortunate waste of time,” he said. “Nothing happened [in voir dire], and it took one week to seat a six-person jury. … “It was a demeaning, insulting process.” Other attorneys, however, disagreed. Boston Corporation Counsel Merita A. Hopkins said that, in her experience, questions had been submitted ahead of time, and the judge had the ultimate control and discretion in the voir dire process. Another attorney said the process had given him “a much better sense of who was who” among potential jury members. Other action taken at the June council meeting included a vote to support a proposed act regarding treatment of principal and income, presented by Arnold Hunnewell. In addition, the governing body ratified the Board of Directors of the Lawyers Committee for Civil Rights, and created a standing committee on Work/Life Balance, to replace the current Presidential Task Force. Dianne Lawlor also announced the establishment of a partnership with West Publishing and the National Practice Institute to provide online CLE programs; an example of this “cutting edge” partnership is available on the BBA Web site under “West CLE.”

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