RECOMMENDATIONS
OF THE
VBA/VSB JOINT COMMISSION TO STUDY MDP
1. Limited Ability to Practice in MDPs. Lawyers should
be permitted to practice law in entities (commonly called "MDPs")
in which non-lawyers hold a position of control or an ownership
interest, as long as the owners are not merely passive investors
or suspended/disbarred lawyers. MDPs should not be required to
register with the state, and should not be restricted to entities
that are majority-owned by lawyers. MDP ownership should not be
limited to licensed professionals.
2. Requirement to Follow All Ethical Obligations. Lawyers
who practice law in MDPs must abide by the Rules of Professional
Conduct, including the Rules protecting the "core values" of competence,
loyalty, independence, confidentiality and avoidance of conflicts,
and must assure that their legal services clients receive the
same level of professionalism and protection as clients of lawyers
who are not practicing law in MDPs. Lawyers may not practice law
in an MDP unless they can abide by the Rules in all respects.
3. Requirement
of Lawyers' Independence. Lawyers who practice law in MDPs
must possess sufficient autonomy within the MDP to maintain their
independence and to assure their adherence to all of their other
ethical obligations, and they must obtain (and forward a copy
to the Virginia State Bar) a written acknowledgment by the MDP
of the lawyer's obligation to maintain independence and adhere
to all his/her ethical obligations and that the lawyer will possess
sufficient autonomy to do so.
4. Requirement
to Avoid Assisting UPL. Lawyers (whether or not they are practicing
law) shall not participate in any MDP or other entity in which
non-lawyers are allowed to engage in the unauthorized practice
of law.
5. Requirement
to Explain Different Confidentiality Duties. Lawyers who practice
law in MDPs must explain, in writing, the duties of confidentiality
and disclosure governing others in the MDP who will provide services
to the lawyer's client, including any differences between the
lawyers' duties and the others' duties.
6. Requirement to Explain Client Options. Lawyers who practice
law in MDPs must explain, in writing, that: (a) the lawyer may
benefit financially if the lawyer's client obtains other services
offered by the MDP; (b) the lawyer's client is not obligated to
use any other services offered by the MDP; and (c) the lawyer's
client may consult with an independent lawyer before obtaining
other services offered by the MDP.
7. Requirement
to Avoid Conflict of Interests. Lawyers who practice law in
MDPs must consider all clients of the MDP or any of its owners
as legal services clients for purposes of avoiding conflicts of
interest.
8. Requirement
to Attend Mandatory CLE. Lawyers
who practice law in MDPs must attend additional educational programs
that address their ethical obligations and emphasize the legal
profession's core values.
9. Responsibility
to Perform Pro Bono Work. All
lawyers, including lawyers practicing law in MDPs, should provide
pro bono legal services.
10. Implementation.
The Virginia State Bar should develop modifications to specific
Rules implementing these Recommendations.
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