Attorney Mark Dubois ()
I get a lot of calls from lawyers who want to vet some creative (and some boneheaded) business ideas. Sometimes, when I tell them their plan is best avoided unless they want the experience of being my client in the disciplinary dock, they respond with a variation of “Where is the law that says I can’t do this?” My reply is often: “Show me the law that says you can.”
I recently saw an article about a New York ethics opinion in response to a lawyer’s proposal to do some legal work for a company that was going to fill in and process applications for Americans applying for citizenship status in foreign countries. Instead of answering the question posed with a yes or no, the New York folks punted and simply identified 21 different rules and legal considerations that might have to be addressed to give the requester a full answer.
Much of the discussion, which the authors admitted was more like law school issue spotting than legal analysis, dealt with the fact that, at its core, the proposal was a mixture of legal and nonlegal services, the dreaded “multidisciplinary practice,” or MDP for short.
For those of you fresh enough to these vineyards not to remember, the idea of MDP was (and remains) that lawyers could provide lawlike or law-related services, or maybe even real legal services, in cooperation and coordination with others so that a client with a complex business proposal or regulatory problem could get one-stop shopping and not worry about coordinating design, technology, regulatory and legal aspects of the project among disparate professionals. From a business viewpoint, it made (and continues to make) simple sense. Corporations can do this because their in-house lawyers can work with others on a coordinated answer to the problem.
Shouldn’t noncaptive lawyers be able to join with other professionals and offer a “team” approach to a client’s problems? Unfortunately, the American Bar Association decided that allowing this would mark the end of lawyering as we know it and shot down a proposed rule authorizing this approach. Today there is no rule saying you cannot do MDP. But if you want to try, you had best look at the old MDP proposal and figure out how your new idea is different. Or find someone who remembers the debate.
I was interested to find that New York actually has an ethics rule, 5.8, which prohibits MDP except in a few carefully defined and limited areas of commerce, such as architecture, engineering and social work. There is also an ABA model rule, 5.7, which treats the idea of “law-related” work offered by lawyers in partnership with others, such as lobbying and consulting. We Connecticut lawyers have neither rule, so those wanting to explore interesting or novel business plans have to call someone such as me to see if they are going to get into trouble.
Sometimes the answer is easy. A fellow called the other day about a lead-selling idea. Hmmm. I told him it was probably a felony under Connecticut’s unique criminal antiambulance-chasing statute. (These discussions often involve audible gulps.) Other times, I tell the caller the story of the MDP debacle. Sometimes, it turns out that the conduct is going to be subject to local regulation, and as the activity is going to be pursued on a national basis, I can’t give them much advice other than to do a 50-state (and one district) survey. (More audible gulping.) Occasionally, the idea is OK under state law, but prohibited under federal law. (Some folks do not realize that the Real Estate Settlement Procedures Act and related laws have criminal as well as civil sanctions.)
The traditional model of one lawyer offering sage advice to one client over a polished desk in a wood-paneled office in a shiny downtown office building is probably as much honored in the breach than the observance today. I have successfully represented many clients who I have never met in person. While I wish it were different, few want to pay for the privilege of meeting me in person if I can do the whole thing over the phone, fax and Internet. But just because new business models make economic sense does not mean they are without ethical peril.
Sometimes, knowing about rules that never made it off the drawing board can be as helpful as knowing about rules that have. •