The Changing Practice of Law

By Paul Lehto

Lawyers that are relatively new to the profession probably have an especially strong interest in knowing the directions in which the practice of law is heading, because they can alter the way we spend our work lives as lawyers. Based on my experience in the on the Washington Young Lawyers Division (WYLD) Board of Trustees, the WSBA Futures of the Profession committee, chairing the newly formed WSBA Board of Governors' Internet and Computer Practices Committee, and serving as the WYLD representative on the Board of Governors, I'd like to outline a few trends and issues, and invite your feedback and opinions. Let me know what you think.

PROPOSED CHANGES TO RULE 11

As part of the Access to Justice proposals to expand the availability of legal counsel, certain changes to Rule 11 on both the Superior Court and District Court levels have been approved by the Board of Governors for submission to the Supreme Court. 

If approved by the Supreme Court, these changes would 'legalize' ghostwriting briefs for clients. A lawyer would be expressly authorized to provide 'unbundled' or limited legal services to clients, which could include helping them with their briefs. However the lawyer would still be subject to an obligation to investigate the matter if there were reason to belief the pleading was false or not 'materially sufficient'. The changes would also make clear that a lawyer may engage a client for limited legal services, such as a single appearance at a hearing, so long as certain standards are kept to. 

For those interested, the proposed changes to various rules to allow unbundled legal services are detailed at http://www.waaccesstojustice.org/. 

MULTIDISCIPLINARY PRACTICE

Multidisciplinary practice, or 'MDP' has been a hot issue nationally for years, only recently taking hold in Washington even though we are often trendsetters rather than trend followers. MDP would allow lawyers to share fees with nonlawyers of other professions, so that 'multidisciplinary' firms could form at the partnership level. 

Critics of MDP have pointed out that nothing stops lawyers from working with other professions, so what MDP really proposes is the legalization of referral fees, fee sharing, and the destruction of law as a profession that has concerns beyond money. A whole host of partnerships such as doctors and personal injury attorneys, or probate attorneys and financial planning firms would seem very likely that would inject large conflicts of interest into the attorney client relationship. Essentially, attorneys could become cross-marketers whose job it is to abuse the attorney-client confidence in order to steer the client into the most profitable possible transactions and capture commissions, profits or fees off of that transaction. 

On the other hand, some have legitimate and interesting hopes for MDP, envisaging a team of lawyers, accountants and consultants providing expert coordination of M&A work instead of operating at arm's length. Social workers or psychiatrists might add real value to a family law practice where people are suffering emotionally. The Big Five accounting firms have often been considered primary drivers of MDP as they seek to gain more of a market share of their client's business services. 

While it's too early to tell, some consider the recent Enron debacle to be at least the temporary death knell for MDP. Arguably, Arthur Anderson had clear conflicts of interest when, in MDP style, it wanted to keep Enron's lucrative consulting work and still claim to be certified 'public' accountants that would audit Enron accurately. These conflicts of interest highlight the 'business v. profession' debate that has been the heart of the MDP controversy. 

ATTORNEY GUARANTEES OF CLIENT'S STATEMENTS

Currently there is a bankruptcy reform bill in conference committee on the national level. Among other changes such as severely restricting the availability of Chapter 7 discharges to consumers with an income, the bill would also make bankruptcy attorneys for debtors personally certify that their client's bankruptcy pleadings are financially accurate on pain of personal liability on the part of the attorney. Both the ABA and the WSBA Board of Governors have voted to oppose this bill. The bill is current stalled until the recession clears, though it has passed both Houses and could be revived at any time.

This raises the larger issue of the trend toward 'attorney accountability'. While perhaps motivated by attorney abuses and incivility, vouching or guaranteeing financial statements dramatically raises the cost of a bankruptcy because attorneys will have to have increased insurance or reserves to cover the risk and extra effort before certifying the pleadings. Thus, while accountability may be a good thing, efforts to implement that accountability can have large negative consequences.

MULTIJURISDICTIONAL PRACTICE 

Multijurisdictional practice refers to an attorney's ability to operate in more than one state without being a member of the bar there. Currently there are two prongs in this general area. First, the states of Oregon, Washington, Idaho and Utah have implemented 'reciprocity' whereby an attorney in one state can become a member of the other's bar by taking 15 credits of CLE and applying for membership. This promises to expand the number of states attorneys maintain bar memberships in. Regular MJP or multijurisdictional practice refers to rules under discussion nationally and in most states to allow transactional lawyers to make limited appearances in other states in a manner roughly similar to litigators appearing pro hac vice. An 'isolated transaction' exception seems to make sense if properly crafted, but there are numerous variations in the proposed rules. For more information on reciprocity, see www.wsba.org/lawyers/licensing/faq-reciprocity.htm.

COMPUTERS 'PRACTICING LAW'

As computerization and the Internet increase in sophistication, it is becoming increasingly possible for computer programs to 'practice law'. An easy example is your willmaking software that marches through a series of questions, mimicking the work of a lawyer, and then produces a will. If properly programmed, the software can often do a decent job. 

Should this type of law practice be allowed' If there's no human to realize that the answer the client gives is round and doesn't fit in the square computerized hole, how will malpractice be prevented' Should programs be certified as accurate before they are allowed to 'practice'' People tend to think that any given question is something for which an answer readily exists, so disclaimers on the software might help legally but don't solve the human question of whether the public will be properly guided, or not.

The WSBA Board of Governors' Internet and Computer Studies Committee will be looking at the impact of these and other changes on the practice of law, including but not limited to what RPC's might be violated or should be changed. If you'd like to participate in the work of this committee, please let me know.

PROPOSED MCLE REQUIREMENTS FOR NEW LAWYERS

As the practice of law becomes increasingly complex, the waiver of CLE requirements for newly admitted attorneys has come into question. The WYLD and WSBA CLE Committee have done an extensive needs assessment and concluded that newer lawyers would benefit and do need MCLE requirements 'right out of the gate'. In balancing the financial impact this might have against the needs of professionalism, the balance seems to be in favor of additional education. The Board of Governors will be looking at this issue in the upcoming year. 

CONCLUSION 

With the creation of the WYLD seat on the Board of Governors, newer lawyers have a unique opportunity to have their perspective heard. Quite often, lawyers are most 'connected' to those lawyers of the same age, leaving newer lawyers essentially underrepresented. If you have opinions of interest to lawyers new to the profession, or any issue relevant to the Board of Governors, I'd be happy to hear from you. 

Paul Lehto is a sole practitioner in Everett, Washington practicing business law and consumer protection. He is the Snohomish District representative on the WYLD Board of Trustees and was elected to the Board of Governors in November 2001 for a 2-year term to represent the Washington Young Lawyers Division. He can be reached at lehto@eskimo.com  or at 425-257-2297. 

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