Tuesday, October
24, 2000
Virginia State Bar
- Board Room
RICHMOND, VIRGINIA
The
VSB/VBA Joint Commission on Multidisciplinary Practice
met at the office of the Virginia State Bar in Richmond,
Virginia, on Tuesday, October 24, 2000, commencing at
10:00 a.m.
Commission
members in attendance were:
John
A. C. Keith, Chair; Howard C. McElroy, Ann T. Burks, James
S. McNider, III, Paul E. Fletcher, Nina E. Olson, Heman
A. Marshall, * Craig L. Rascoe, Leigh B. Middleditch,
Jr., * Thomas E. Spahn, Donna D. Lange, Frank A. Thomas,
III, Jeffrey G. Lenhart, Clark H. Worthy
* by
telephone
Unable
to attend were:
Theodore
I. Brenner, Robert C. Nusbaum, Brian V. Ebert, James M.
White, III, John D. Epps, Robert C. Wood, III
Also
attending were:
Thomas
A. Edmonds, VSB Executive Director, James M. McCauley,
VSB Ethics Counsel, Flora Townes, T. C. Williams Extern,
Gary T. Piacentini, Gary L. Wilbert.
I.
Review
and Approval of Minutes from Meeting of September 26,
2000.
The
minutes of the meeting conducted on Tuesday, September
26, 2000, were reviewed and approved.
II.
Reports From Subcommittees.
- Education,
Communication, Funding and Consumer Demand.
Donna Lange reported that her subcommittee has added
lay members with expertise in media and communications.
She reported that Florida's effort to get the word
out on MDPs via the "town hall" approach did not
generate much interest by the general public and
business community. They spent $32,000 on this unsuccessful
venture. Leigh Middleditch made a suggestion that
we identity some key media folks and see if they
are interested in attending commission meetings.
Persons like Ginger Stanley perhaps could give us
some sense of the depth of interest the media might
have in MDP. Howard McElroy spoke of the danger
in relying upon public surveys and warned about
making decisions based on what the public says in
surveys. Those surveys are not helpful unless the
persons surveyed know something about MDP. Even
sophisticated consumers do not know the implications
of the "trade off" of client protective rules for
convenience and efficiency.
- UPL/Ethics.
Tom Spahn reported that he is working on an article
about the debate over MDPs. Flora Townes reported
on her research of activity by other bars. Oregon
has rejected a proposal to create a study committee
to examine MDP. Maryland and Pennsylvania have rejected
reports favoring modification of Rule 5.4 to allow
MDP. Maryland's concerns were that MDP would further
compromise "core values;" that there is too much
potential for conflicts of interests. Ann Burks
commented that two sections of the Maryland Bar
opposed MDPs before the board of governors acted.
No effort by those in favor of MDP to lobby the
rank and file. Frank Thomas gave the Commission
an overview of the statutory restrictions on professional
service firms practicing in limited liability entities
(PC, PLLC, LLP). These statutes have restricted
ownership and control to licensed professionals.
Heman Marshall raised the issue of whether in Virginia
we have a corporate practice of medicine. Jim McCauley
reported on a pending declaratory judgment suit
filed in Amherst Co. by a patent attorney (O'Brien
v. VSB) in which the attorney is challenging the
bars position that an attorney cannot practice in
an ordinary LLC. Tom Spahn reported that he and
Jim McCauley are working on a presentation on MDPs
for the John Marshall Inns of Court on November
14.
- Impact
of MDPs on Small and Solo Practices. Jeff Lenhart
said his subcommittee has canvassed a number of
local bar associations and specialty groups to see
if anyone other than our commission has studied
MDP. He reported that there is a nominal report
by the ABA Small Firm and Solo Practice Section.
However, no one else seems to have considered MDP,
including VTLA and VADA. One state-Oklahoma- has
appointed a special task force to study the impact
of MDP on small firms and solo practices. Jeff asked
the Board of Governors of the VSB General Practice
Section to appoint a liaison to the commission.
Very few people seem to understand the implications
of MDP. Thus conducting town hall style meetings
may be premature. In short, we seem to be plowing
"virgin soil."
- Regulation
of Accountants and Other Professions. Craig
Rascoe reported that CPAs in Virginia are definitely
pro-MDP. Craig Rascoe and Tom Edmonds reported that
they are planning to have representatives of the
VSCPA come to our meeting in November or December
to talk about MDP. John Keith spoke about the unsuccessful
meeting in 1998 with representatives of the "Big
Five" and the VSCPA. Craig talked about the conflict
that CPAs have in auditing the same firms for which
they also perform consulting services. A website,
"www.sec.gov" has useful information on the SEC's
position concerning auditing/consulting conflicts.
Craig reported that the insurance financial professionals
have statutes prohibiting fee-splitting with unlicensed
agents. By and large, however, it appears that the
accounting profession is the only other profession
that has ethical standards that approach those of
the legal profession. The other disciplines do not
seem to have as many standards.
III.
Other Discussion
- Meetings
and Programs. John Keith reported that the Commission
has been asked by the VBA to make a 1.5 hour presentation
on MDP at the VBA's meeting in Williamsburg on Saturday,
January 20, 2001. John Keith, Tom Spahn and Jim
McCauley volunteered to serve as a steering subcommittee
for that event. In addition, the commission has
been asked to do a presentation for the Conference
of Local Bar Leaders (Bar Leaders Institute) on
March 12 and March 19. John Keith also recommended
setting more meetings for the rest of the fiscal
year for the commission, indicating that we would
continue to meet on the fourth Tuesday of every
month, unless conflicts dictate otherwise. John
will check his calendar and then send out a notice
of future meeting dates.
- John Keith
suggested that each meeting in the future have a
"focus" or "theme" and started a roundtable discussion
on whether the purported threat to independence
envisioned by opponents of MDP is real or imaginary.
Frank Thomas and others offered the view that professional
independence is an acquired learning, and not a
value understood by those just starting fresh out
of law school. Some have pondered whether a formal
internship/apprenticeship for new lawyers is desirable.
Gary Piacientini, a lawyer/CPA, reminded the commission
that accountants have a two-year apprenticeship
requirement, after they pass the CPA exam, for full
licensure of CPAs. It is not self-obvious how to
go about auditing a client. Does the new lawyer
fresh out of law school have any more sense of independence
than those who are recruited by the "Big Five?"
Do associates in big law firms and lawyers in "captive
firms" run by the insurance companies have more
"independence" than MDP lawyers?
IV.
Adjournment
There
being nothing further to discuss, the Chair adjourned
the meeting until Tuesday, November 28, 2000, at the Virginia
State Bar offices in Richmond.
