The VSB/VBA Joint Commission to Study Multidisciplinary Practice met on Thursday, January 13, 2000, in Williamsburg, Virginia, commencing at 3:00 p.m.

Commission members in attendance were:

Ann T. Burks
Donna DiServio Lange
Jeffrey G. Lenhart
Heman A. Marshall
Howard C. McElroy
James S. McNider, III
Leigh B. Middleditch, Jr.
Craig L. Rascoe
Frank A. Thomas, III
James M. White, III
John A. C. Keith

Also attending were:

W. Scott Street, III
Thomas A. Edmonds
James M. McCauley
Paul E. Fletcher
E. Eugene Luther

Unable to attend:

Robert C. Nusbaum
Theodore I. Brenner
Brian V. Ebert
John D. Epps
Robert C. Wood, III
David C. Landon
Charles B. Arrington, Jr.

I Remarks and General Discussion

The meeting began with welcoming remarks by John Keith, who served as acting chair since Mr. Nusbaum was unable to attend due to illness. Mr. Keith asked each member in attendance to introduce themselves and describe their practice.

Mr. Keith gave a brief overview of his thoughts concerning multidisciplinary practices and described his view of the purpose and function of this commission -- to study MDPs, to render a report and to possibly make recommendations concerning MDPs. He expressed the view that many lawyers in Virginia seem surprised at the development of MDPs by the big accounting firms. Mr. Keith provided a definition of MDPs as an attorney associated with another professional from another discipline. Mr. Keith advised that one goal of the commission is to study how lawyers working in MDPs may be regulated. He explained that lawyers working in big accounting firms appear to be largely unregulated because they are compelled to deny they are practicing law. There is a large movement of legal talent outside of the legal profession to MDPs. Mr. Keith expressed the view that he did not know whether "one-stop shopping" is really a consumer-driven demand. Mr. Keith remarked that in the District of Columbia, MDPs are permitted to operate only if the lawyer members are subject to the professional conduct rules and the MDP can only provide legal services. Mr. Keith provided an overview of the definition of the practice of law as defined by the Virginia Supreme Court in Part 6, Section I (B). In addition, Mr. Keith went over the applicable Rules of Professional Conduct that are relevant to the lawyers practicing in MDPs.

Mr. Keith also provided some background on the bar's previous efforts to study MDPs, including a meeting with representatives from the Executive Committee of the Virginia Society of Certified Public Accountants. He observed that while the big accounting firms were represented at that meeting, they were not prepared to enter into any substantial dialogue or to speak off the record. Mr. Keith encouraged involving the accounting profession in the commission's study.

Mr. Keith also observed that in the wake of Unauthorized Practice of Law Opinion 183 and the CRESPA legislation, the bar should regard that development as a good object lesson. If the bar overreacts with UPL enforcement as a response to MDPs, there is certainly the risk that the Legislature will react as it did with CRESPA.

Mr. Keith then invited each member to opine as to what they believed the practice of law will be like in the future. Ann Burks started the discussion by recognizing the inevitability of MDPs and the influence of electronic media and technology, which should speed the delivery of legal services. Tom Edmonds observed that, notwithstanding the ABA Commission's report on MDPs, the "Big Five" will not go along with their lawyers being subject to the Rules of Professional Conduct. Howard McElroy also made observations concerning the impact of the electronic age on the delivery of legal services. J. White observed that the law is becoming increasingly complex in specific areas, and that areas of specialization are increasing. Also, with increased regulations, the commission needs to be concerned about how to draft rules across all these lines. Mr. White was also impressed by a comment from one of the representatives of AARP in testimony before the ABA Commission, that 80% of AARP's members do not wish to consult with lawyers.

Craig Rascoe observed that consumers will not care whether legal services are provided by lawyers, accountants, etc. Increasingly, large multi-state law firms are forming. Mr. Rascoe drew an analogy to what has occurred in the legal profession where non-medical professionals have ownership of health care delivery systems. Donna Lange observed that consumers will insist on obtaining what they want, i.e., competent legal services. However, people still need relationships and implicitly the role of an attorney as an advisor is not dead. Paul Fletcher offered the rhetorical question: "Is the general practitioner dead?" He observed that in this electronic world, there is increasingly less human contact, and an increase in consolidation of personal services. He also observed that there will be little public support or sympathy for lawyers or the legal profession. Jeff Lenhart agreed with the observation there will be increased specialization. Perhaps law is just a product. He was concerned with the role of an attorney as counselor, and how technology has depersonalized the practice of law. However, the legal profession in Virginia should not be scared to take the lead in regulating MDPs on a large scale. He also drew the analogy to the medical profession and HMOs where corporations have acquired doctor's practices. Now HMOs are making life decisions through insurance profiles, but, by and large, the system seems to work.

Gene Luther, a sole practitioner in Annandale, observed that 50 years ago there was a high level of professionalism. Mr. Luther is of the opinion that the general practitioner will survive, and that there is a role for the lawyer as counselor that cannot be supplanted by computer technology. Frank Thomas expressed concerns regarding survival of the general practitioner in a high tech environment where large companies, such as MDPs, take over the profession. Heman Marshall referred to the practice of law in the future in a "virtual world" where legal services are little more than a commodity. Lee Middleditch expressed reservations about the viability of the unauthorized practice of law and its ability to prevent or counter the development of MDPs. He expressed the view that the consumer-driven market will dictate how the practice of law evolves, rather than governmental regulation. In referring to the medical profession and HMOs, he observed that doctors suffered a "psychological trauma" from having once been a beloved profession which now enjoys far less public support and sympathy. However, since lawyers have not traditionally enjoyed a favorable public perception, the psychological trauma experienced by the medical profession would not be an experience shared by the legal profession. Mr. Middleditch read an excerpt from his letter of December 23, 1999, to ABA President William G. Paul. A copy of that letter is attached to these minutes.

John Keith expressed the opinion that courts will still be reserved for lawyers, but predicted a crisis with respect to UPL enforcement. Jim McCauley expressed his opinion that UPL enforcement still has a place in the future, notwithstanding the fact that it might be a barrier to a consumer-driven legal marketplace. However, consumers will increasingly rely on computer technology to obtain legal information and legal advice. Internet service providers and CD-ROM packages will proliferate, and increasingly, nonlawyer corporations will bundle legal services. Mr. McCauley referred to an article by Professor Stephen Gillers, a copy of which is attached to these minutes.

II Structure and Organization

John Keith made several suggestions about how the commission could organize and perform its tasks. There appeared to be a consensus that the commission should break into subcommittees charged with the study of specific areas, and to obtain information, evidence, etc. The suggestion was made that a CPA should address the commission concerning the ethical requirements imposed on the accounting profession. Mr. Middleditch suggested, however, that the testimony from lawyer/accountants before the ABA Commission covers this area quite thoroughly. Therefore the commission should be able to obtain this information by reviewing the witness transcripts.

Mr. Keith suggested that the commission break into smaller groups meeting between the scheduled meetings of the entire commission. These subcommittees could then report their observations to the full commission.

Near the conclusion of the meeting, a sheet was circulated requesting e-mail addresses for use in future communications. Scott Street and John Keith emphasized that the commission is open to new members, and that any recommendations in that regard are welcome.

Following the meeting, Leigh Middleditch proposed that Tom Spahn be added as a member. Scott Street, John Keith and Jim McCauley then met to discuss how the commission could best be broken into subcommittees. Five subject areas were suggested: 1) UPL/Ethics; 2) Accounting Professions/Big Five; 3) Other Disciplines; 4) Impact of MDPs on Small Firms/Sole Practitioners; and 5) Consumer Issues. It was reiterated that the commission should probably meet quarterly, with the subcommittees meeting at least once between those quarterly meetings. John Keith suggested that the full commission meet in February, May, September and November/December, 2000. The spacing of these meetings should allow time for the subcommittees to meet. John Keith agreed to prepare a letter to the commission discussing these matters in detail.

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