MINUTES OF THE VIRGINIA STATE BAR/
VIRGINIA BAR ASSOCIATION
JOINT COMMISSION TO STUDY MULTIDISCIPLINARY PRACTICE

Tuesday, March 20, 2001
Virginia State Bar - Board Room
Richmond, Virginia

The VSB/VBA Joint Commission on Multidisciplinary Practice met in the Board Room of the offices of the Virginia State Bar at the Eighth & Main Building in Richmond, Virginia, on Tuesday, March 20, 2001, commencing at 10:00 a.m.

Commission members in attendance were:

Ann T. Burks James M. McNider, III *
Theodore I. Brenner Robert C. Nusbaum *
John D. Epps Craig L. Rascoe
Paul E. Fletcher Thomas E. Spahn
Donna D. Lange Frank A. Thomas, III
Heman Marshall * Clark H. Worthy
Howard McElroy *
Leigh B. Middleditch *

Unable to attend were:

John A. C. Keith, Chair Nina E. Olson
Brian V. Ebert Gary T. Piacentini
Jeffrey G. Lenhart Robert C. Wood, III

Also attending were:

Thomas A. Edmonds, VSB Executive Director
James M. McCauley, VSB Ethics Counsel
Leslie A. T. Haley, VSB Assistant Ethics Counsel

* Attended by phone

 

Subcommittee Report (Donna Lange)

Donna Lange brought the commission up-to-date regarding her contact with the public relations and media representatives who have advised of the importance of condensing the commission's message. To this end, this subcommittee, in consultation with Mr. Keith, prepared a single page memo to accompany a survey concerning MDP. Ms. Lange explained that the commission has already set out to perform phase 1 of its mission by educating the bar concerning MDP. Phase 2 should consist of obtaining input from the membership. The subcommittee has discussed several methods for obtaining input from the membership. They rejected a direct mass mailing because of the cost. The suggestion was made that the one-page memo and survey be circulated to bar leaders so they could solicit input from the local bars. In addition, Mr. Fletcher volunteered to publish the memo and survey and conduct a fax poll similar to the one Virginia Lawyers Weekly did on IOLTA. After discussion, it was agreed that Ms. Lange and Mr. Spahn would edit and revise the subcommittee's work product in time to meet the deadline for publication in the April issue of the Virginia Lawyer. In addition, Ms. Lange suggested that the memo and survey be circulated at the ANLIR Risk Prevention Seminars. It was also suggested, and agreed, that the survey and talking points memo should also be sent to each member of Council. Mr. McCauley's staff will implement these items.

Preparation of Preliminary Report for June Council Meeting

Mr. Middleditch and Mr. Spahn suggested that the commission and staff begin to accumulate and distill language from the pro-MDP reports for incorporation in its report to Council in June at the Annual Meeting. Mr. Middleditch provided a copy of Arizona's report, which recommends a fully-integrated MDP. Discussion ensued about the types of MDP this commission has considered: 1) lawyer-controlled MDPs, in which any type of professional service can be rendered; 2) fully-integrated MDPs, in which nonlawyers could own a majority interest in the firm and which could deliver any type of professional service; and 3) lawyer-controlled MDPs, in which lawyers own the majority interest, and the services are restricted to the delivery of legal services.

 

Reaching a Consensus on MDP

In Mr. Keith's absence, Mr. McCauley started the discussion by asking a series of questions:

1) Should Rule 5.4 be amended to allow Virginia-licensed lawyers to practice law in a law firm in which legal fees are shared with nonlawyers, or where nonlawyers hold an ownership interest, when such entity delivers, in whole or in part, legal services to the public?

After some discussion, all but one commission member answered, "yes," but several members anticipated further qualifications and restrictions.

2) Should Rule 5.4 be amended to permit Virginia-licensed lawyers to practice law in an entity controlled by nonlawyers, which provides, in whole or in part, legal services to the public?

The votes on this questions were: 8 yes and 3 no.

3) Should Rule 5.4 be amended to allow Virginia-licensed lawyers to practice law in an entity controlled by other licensed or regulated professionals, when such entity provides, in whole or in part, legal services to the public?

Ten members voted "yes" and one member voted "no."

There were 13 participating in this discussion, and thus it appears a consensus emerged. Implicit in all these questions is the requirement that lawyers working in MDPs would be held personally accountable under all Rules of Professional Conduct. The consensus of the group was that MDPs would have to register with the bar and pay a registration fee to defray the cost of regulation. Also, as part of the registration process, MDPs would be required to certify that they would permit lawyers to work independently and not interfere with a lawyer's obligations under the Rules of Professional Conduct. There was still much to say about how lawyers would deal with conflicts and whether non-legal clients of an MDP should be imputed to the MDP lawyers for purposes of conflicts under Rule 1.7. Some members believe that in many instance such conflicts could be cured by waiver after full consultation. Concerns were expressed about protecting confidentiality and the need for warnings and disclaimers to prospective MDP clients. Such warnings should advise prospective clients of the potential consequences of entrusting information to nonlawyers in an MDP setting, except where such nonlawyers are support staff working under the direct supervision of MDP lawyers.

If an MDP were to interfere with a lawyer's compliance with the Rules, the VSB should have the authority to revoke the MDP's registration. If the MDP were to continue operating without the registration, the VSB should have authority to enforce the Unauthorized Practice Rules against a noncompliant MDP. Finally, there should be public education concerning the importance of the "core values" of the legal profession.

 

Adjournment

Following this discussion, the meeting was adjourned. The commission will meet next on Tuesday, April 24, 2001.