Multidisciplinary Practice

Business Lawyer

Volumn 55, Issue 3, 2000, Pages 951-974

  Fischel, Daniel R ^a  

^a NONE

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EID: 0034420604     PISSN: 00076899     EISSN: None     Source Type: Journal    
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References (87)

1. See ABA Comm'n on Multidisciplinary Practice, Background Paper on Multidisciplinary Practice: Issues and Developments (Jan. 1999), available in 〈http://www.abanet.org/cpr/ multicomreport0199.html〉 [hereinafter Background Paper].
2. MODEL RULES OF PROFESSIONAL CONDUCT Rule 5.4 (1999). Model Rule 5.4 provides in pertinent part: (a) A lawyer or law firm shall not share legal fees with a non-lawyer . . . . (b) A lawyer shall not form a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law. (c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services. (d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if . . . a non-lawyer owns any interest therein . . . . Id.
3. See ABA Comm'n on Multidisciplinary Practice, Report to the House of Delegates, app. C, reporter's notes, pt. I(C) (Aug. 1999), available in 〈http://www.abanet.org/cpr/mdpappendixc. html〉. The District of Columbia is the only jurisdiction that has modified Model Rule 5.4. The District permits a lawyer to form a partnership and share fees with a non-lawyer, subject to certain clearly defined restrictions. See id.
4. See MODEL RULES OF PROFESSIONAL CONDUCT Rule 5.4. The same rules apply if the law firm is organized as a corporation. See ABA Comm. on Professional Ethics, Formal Op. 303 (1961) (requiring that all stockholders be lawyers and prohibiting non-lawyers from participating in profit-sharing plans or in management); see also MODEL RULES OF PROFESSIONAL CONDUCT Rule 5.4(d).
5. See MODEL RULES OF PROFESSIONAL CONDUCT Rule 5.4. The same rules apply if the law firm is organized as a corporation. See ABA Comm. on Professional Ethics, Formal Op. 303 (1961) (requiring that all stockholders be lawyers and prohibiting non-lawyers from participating in profit-sharing plans or in management); see also MODEL RULES OF PROFESSIONAL CONDUCT Rule 5.4(d).
6. See MODEL RULES OF PROFESSIONAL CONDUCT Rule 5.4. The same rules apply if the law firm is organized as a corporation. See ABA Comm. on Professional Ethics, Formal Op. 303 (1961) (requiring that all stockholders be lawyers and prohibiting non-lawyers from participating in profit-sharing plans or in management); see also MODEL RULES OF PROFESSIONAL CONDUCT Rule 5.4(d).
7. See ABA Comm. on Professional Ethics, Formal Op. 303 (1961).
8. See, e.g., Elizabeth MacDonald, Accounting Firms Hire Lawyers and Other Attorneys Cry Foul, WALL ST. J., Aug. 22, 1997, at B8.
9. Arthur Anderson, for example, recently reported that it now employs 2734 lawyers in 35 countries. See Arian Campo-Flores, King Arthur, AM. LAW., Jan. 2000, at 17.
10. See, e.g., Tom Herman, Ernst & Young Will Finance Launch of Law Firm in Special Arrangement, WALL ST. J., Nov. 3, 1999, at B10.
11. See, e.g., Brenda Sandburg, MoFo Allies With Accounting Giant, N.Y. L.J., Aug. 9, 1999, at 2.
12. See, e.g., Ritchenya A. Shepherd, Law and Finance Under One Roof, NAT'L L.J., Nov. 15, 1999, at A21.
13. See Herman, supra note 8, at B10 (quoting Ernst & Young spokesman as insisting that accounting firm will be lender and will neither own any part of new law firm nor share any fees or profits of new law firm).
14. Lawrence J. Fox, Written Remarks Before the Multidisciplinary Practice Commission (visited Mar. 2, 2000), available in 〈http://www.abanet.org/cpr/foxl.html〉 [hereinafter Fox Written Remarks].
15. See ABA Comm'n on Multidisciplinary Practice, Report to the House of Delegates (Aug. 1999), available in 〈http://www.abanet.org/cpr/mdpreport.html〉 [hereinafter ABA Final Report]. The Commission endorsed MDPs but recommended that other restrictions such as the ban on passive investment and the imputed conflicts rule remain in effect. See id.; see also ABA Comm'n on Multidisciplinary Practice, Report to the House of Delegates, Recommendation (June 8, 1999), available in 〈http://www.abanet.org/cpr/mdrecommendation.html〉.
16. See ABA Comm'n on Multidisciplinary Practice, Report to the House of Delegates (Aug. 1999), available in 〈http://www.abanet.org/cpr/mdpreport.html〉 [hereinafter ABA Final Report]. The Commission endorsed MDPs but recommended that other restrictions such as the ban on passive investment and the imputed conflicts rule remain in effect. See id.; see also ABA Comm'n on Multidisciplinary Practice, Report to the House of Delegates, Recommendation (June 8, 1999), available in 〈http://www.abanet.org/cpr/mdrecommendation.html〉.
17. ABA Comm'n on Multidisciplinary Practice, Updated Background and Informational Report and Request for Comments (Dec. 1999), available in 〈http://www.abanet.org/cpr/febmdp.html〉 [hereinafter Updated Report] (quoting Adopted Resolution of the Florida Bar). This is not the first time the ABA has considered the issue of multidisciplinary practice. In 1981, the Kutak Commission urged the ABA to adopt a proposed Model Rule 5.4 which would have permitted lawyers to combine with non-lawyers and share profits and fees with certain limitations. This proposed rule was rejected in its entirety by the ABA House of Delegates which ultimately adopted current Model Rule 5.4. This history is summarized in Edward S. Adams & John H. Matheson, Law Firms on the Big Board?: A Proposal for Nonlawyer Investment in Law Firms, 86 CAL. L. REV. 1, 8-11 (1998).
18. ABA Comm'n on Multidisciplinary Practice, Updated Background and Informational Report and Request for Comments (Dec. 1999), available in 〈http://www.abanet.org/cpr/febmdp.html〉 [hereinafter Updated Report] (quoting Adopted Resolution of the Florida Bar). This is not the first time the ABA has considered the issue of multidisciplinary practice. In 1981, the Kutak Commission urged the ABA to adopt a proposed Model Rule 5.4 which would have permitted lawyers to combine with non-lawyers and share profits and fees with certain limitations. This proposed rule was rejected in its entirety by the ABA House of Delegates which ultimately adopted current Model Rule 5.4. This history is summarized in Edward S. Adams & John H. Matheson, Law Firms on the Big Board?: A Proposal for Nonlawyer Investment in Law Firms, 86 CAL. L. REV. 1, 8-11 (1998).
19. International developments are summarized in Updated Report, supra note 14, intro.; see generally Laurel S. Terry & Clasina B. Houtman Mahoney, What if . . . . . . . . ?: The Consequences of Court Invalidation of Lawyer-Accountant Multidisciplinary Partnership (MDP) Bans, in Southwestern Legal Foundation Symposium on Private Investments Abroad: Future Role of Merged Law and Accounting Firms (June 17, 1998) (on file with The Business Lawyer, University of Maryland School of Law).
20. International developments are summarized in Updated Report, supra note 14, intro.; see generally Laurel S. Terry & Clasina B. Houtman Mahoney, What if . . . . . . . . ?: The Consequences of Court Invalidation of Lawyer-Accountant Multidisciplinary Partnership (MDP) Bans, in Southwestern Legal Foundation Symposium on Private Investments Abroad: Future Role of Merged Law and Accounting Firms (June 17, 1998) (on file with The Business Lawyer, University of Maryland School of Law).
21. MODEL RULES OF PROFESSIONAL CONDUCT Rule 5.4 (1999).
22. See Fox Written Remarks, supra note 12.
23. See, e.g., id.
24. See United States v. Arthur Young & Co., 465 U.S. 805, 817 (1984) (holding attorneys are "advocate[s] . . . whose duty it is to present the client's case in the most favorable possible light").
25. For an argument that the term "fiduciary duties" has no independent meaning and is best understood as encompassing implied contractual terms, see Frank H. Easterbrook and Daniel R. Fischel, Contract and Fiduciary Duty, 36 J.L. & ECON. 425, 425-27 (1993).
26. See David B. Wilkins, Who Should Regulate Lawyers?, 105 HARV. L. REV. 801 (1991), for a thoughtful discussion of the relationship between independence arguments and the regulation of the legal profession. "The common assertion that independence is synonymous with self-regulation is . . . nothing more than a tautology. . . . [L]awyers must produce some justifications, over and above the general rights every citizen has in a democracy, to explain why society should forgo the tangible benefits of increasing overall compliance with professional norms." Id. at 854 (footnote omitted).
27. See infra notes 55-72 and accompanying text.
28. ABA Comm'n on Professionalism, Report to the Board of Governors and the House of Delegates of the ABA, 112 F.R.D. 243, 261 (1986) (quoting ROSCOE POUND, THE LAWYER FROM ANTIQUITY TO MODERN TIMES 5 (1953)) (alteration in original).
29. ABA Comm'n on Professionalism, Report to the Board of Governors and the House of Delegates of the ABA, 112 F.R.D. 243, 261 (1986) (quoting ROSCOE POUND, THE LAWYER FROM ANTIQUITY TO MODERN TIMES 5 (1953)) (alteration in original).
30. Terry & Houtman Mahoney, supra note 15, at 11 (omission in original) (quoting John Gibeaut, Squeeze Play, ABA J. 42, 45 (Feb. 1998)).
31. United States v. Arthur Young & Co., 465 U.S. 805, 817 (1984) (italics omitted). There are limits to the attorney's duty to his or her client. For example, attorneys cannot defraud third parties, particularly courts, and cannot aid clients in the commission of a crime. However, lawyers are less able than other agents to disclose confidential information to protect third parties from harm. See generally Daniel F. Fischel, Lawyers and Confidentiality, 65 U. CHI. L. REV. 1 (1998).
32. For a discussion of the social value of lawyers in different contexts, see generally Frank B. Cross, The First Thing We Do, Let's Kill All the Economists: An Empirical Evaluation of the Effect of Lawyers on the United States Economy and Political System, 70 TEX. L. REV. 645 (1992) (examining the perceived "lawyerification" and litigiousness in the United States); Ronald J. Gilson, Value Creation by Business Lawyers: Legal Skills and Asset Pricing, 94 YALE L.J. 239 (1984) (examining the value of lawyers in business transactions); Ronald J. Gilson & Robert H. Mnookin, Disputing Through Agents: Cooperation and Conflict Between Lawyers in Litigation, 94 COLUM. L. REV. 509 (1994) (examining lawyers' contributing to dispute resolution).
33. For a discussion of the social value of lawyers in different contexts, see generally Frank B. Cross, The First Thing We Do, Let's Kill All the Economists: An Empirical Evaluation of the Effect of Lawyers on the United States Economy and Political System, 70 TEX. L. REV. 645 (1992) (examining the perceived "lawyerification" and litigiousness in the United States); Ronald J. Gilson, Value Creation by Business Lawyers: Legal Skills and Asset Pricing, 94 YALE L.J. 239 (1984) (examining the value of lawyers in business transactions); Ronald J. Gilson & Robert H. Mnookin, Disputing Through Agents: Cooperation and Conflict Between Lawyers in Litigation, 94 COLUM. L. REV. 509 (1994) (examining lawyers' contributing to dispute resolution).
34. For a discussion of the social value of lawyers in different contexts, see generally Frank B. Cross, The First Thing We Do, Let's Kill All the Economists: An Empirical Evaluation of the Effect of Lawyers on the United States Economy and Political System, 70 TEX. L. REV. 645 (1992) (examining the perceived "lawyerification" and litigiousness in the United States); Ronald J. Gilson, Value Creation by Business Lawyers: Legal Skills and Asset Pricing, 94 YALE L.J. 239 (1984) (examining the value of lawyers in business transactions); Ronald J. Gilson & Robert H. Mnookin, Disputing Through Agents: Cooperation and Conflict Between Lawyers in Litigation, 94 COLUM. L. REV. 509 (1994) (examining lawyers' contributing to dispute resolution).
35. See Amy Stevens, Fee-for-All: Savvy Lawyers Find Way to Make Millions: Win Pro Bono Cases, WALL ST. J., Nov. 29, 1995, at Al.
36. See RICHARD A. POSNER, OVERCOMING LAW 61 (1995) ("The 'ethical' obligation of lawyers to devote a certain amount of their time to 'pro bono' (nonfee) work . . . limits the supply of legal services to the market while jacking up the demand. For the more legal assistance indigents have, the more paid legal assistance their adversaries . . . need."). See generally Jonathan R. Macey, Mandatory Pro Bono: Comfort for the Poor or Welfare for the Rich?, 77 CORNELL L. REV. 1115 (1992).
37. See RICHARD A. POSNER, OVERCOMING LAW 61 (1995) ("The 'ethical' obligation of lawyers to devote a certain amount of their time to 'pro bono' (nonfee) work . . . limits the supply of legal services to the market while jacking up the demand. For the more legal assistance indigents have, the more paid legal assistance their adversaries . . . need."). See generally Jonathan R. Macey, Mandatory Pro Bono: Comfort for the Poor or Welfare for the Rich?, 77 CORNELL L. REV. 1115 (1992).
38. Fox Written Remarks, supra note 12.
39. Id.
40. See, e.g., ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION (1993).
41. See Fox Written Remarks, supra note 12 ("[C]lient protection alone provides more than enough justification for our present regulatory framework.").
42. Ohio State Bar Association, Report with Recommendation to the House of Delegates (Feb. 2000) (on file with The Business Lawyer, University of Maryland School of Law).
43. See infra note 63 and accompanying text. Despite the publicity about the delivery of legal services by accounting firms and other integrated firms, regulators have thus far been unwilling to challenge the practices as engaging in the unauthorized practice of law. In 1998, for example, the Unauthorized Practice of Law Committee of the Texas Supreme Court announced that it would not file a complaint against Arthur Andersen & Co. after an eleven-month investigation. See Arthur S. Hayes, Accountants v. Lawyers: Bean Counters Win, NAT. L.J., Aug. 10, 1998, at A4.
44. Of course, not all MDPs are legal global organizations and not all clients of MDPs are sophisticated corporate entities. MDPs may consist, for example, of affiliations between divorce or estate planning lawyers with financial planners to provide superior services to individual clients. But here too clients benefit when non-lawyers are allowed to aid in the delivery of "legal" services. See Deborah L. Rhode, The Delivery of Legal Services by Non-Lawyers, 4 GEO. J. LEGAL ETHICS 209, 214-16 (1990).
45. The U.S. Securities and Exchange Commission (SEC) has taken the position that in its view the role of auditor and lawyer are incompatible under federal securities law. The Commission on Multidisciplinary Practice has now endorsed this same position. See Updated Report, supra note 14, pt. 2(9).
46. See generally Daniel R. Fischel, The Regulation of Accounting: Some Economic Issues, 52 BROOK. L. REV. 1051 (1987).
47. See Ross L. Watts & Jerold L. Zimmerman, Agency Problems, Auditing, and the Theory of the Firm: Some Evidence, 26 J.L. & ECON. 613, 615 (1983) (analyzing qualitative evidence and concluding that the existence of independent auditors was not the result of regulatory requirements).
48. For an elaboration of this argument that the economic function of lawyers and accountants is more similar than commonly assumed, see Daniel R. Fischel, Lawyers and Confidentiality, 65 U. CHI. L. REV. 1, 17-21 (1998).
49. The impact of providing consulting services on auditor independence has been discussed extensively. See, e.g., U.S. GENERAL ACCOUNTING OFFICE, THE ACCOUNTING PROFESSION - MAJOR ISSUES: PROGRESS AND CONCERNS 41-42 (Sept. 1996) (summarizing studies and concluding "[n]one of these studies reported any conclusive evidence of diminished audit quality or harm to the public interest, or any actual impairment of auditor independence, as a consequence of public accounting firms providing advisory or consulting services to their audit clients"). Nevertheless, the SEC is pressuring accounting firms to separate their auditing from their consulting businesses. See, e.g., Elizabeth MacDonald, Price Waterhouse Coopers Will Divide into Two or More Parts Under Pressure, WALL ST. J., Feb. 18, 2000, at B8.
50. The impact of providing consulting services on auditor independence has been discussed extensively. See, e.g., U.S. GENERAL ACCOUNTING OFFICE, THE ACCOUNTING PROFESSION - MAJOR ISSUES: PROGRESS AND CONCERNS 41-42 (Sept. 1996) (summarizing studies and concluding "[n]one of these studies reported any conclusive evidence of diminished audit quality or harm to the public interest, or any actual impairment of auditor independence, as a consequence of public accounting firms providing advisory or consulting services to their audit clients"). Nevertheless, the SEC is pressuring accounting firms to separate their auditing from their consulting businesses. See, e.g., Elizabeth MacDonald, Price Waterhouse Coopers Will Divide into Two or More Parts Under Pressure, WALL ST. J., Feb. 18, 2000, at B8.
51. See Fox Written Remarks, supra note 12.
52. The idea that the lawyer-client privilege protects the guilty dates back to Jeremy Bentham more than 150 years ago. I defend and extend Bentham's claim in Fischel, supra note 39, at 22-26. See also V JEREMY BENTHAM, RATIONALE OF JUDICIAL EVIDENCE bk. IX, pt. IV, ch. V, sec. II (Garland Publishing, Inc. 1978) (1827).
53. See MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.7 (1999).
54. See id. Rule 1.10. There are separate rules for government lawyers who move from the government into the private sector. See id. Rule 1.11.
55. See Fox Written Remarks, supra note 12.
56. ABA Comm'n on Multidisciplinary Practice, Report to the House of Delegates, app. A (Aug. 1999) 〈http://www.abanet.org/cpr/mdpappendixa.html〉 (proposing changes to the Comment to Rule 1.10 on Imputed Disqualification).
57. See generally R. H. Coase, The Problem of Social Cost, 3 J.L. & ECON. 1 (1960).
58. See Fox Written Remarks, supra note 12 ("A lawyers [sic] duty of confidentiality is not waiveable for the benefit of the lawyer and, even if it were, a prospective waiver would be void since by definition it could never be knowing and intelligent."); see also Nathan M. Crystal, Disqualification of Counsel for Unrelated Matter Conflicts of Interest, 4 GEO. J. LEGAL ETHICS 273, 306-07 (1990) (criticizing a form for a blanket prospective waiver recommended by the Attorneys' Liability Assurance Society (ALAS)). Some have argued that prospective waivers should be enforceable. See Letter from Drafting Group on Waivers of Future Conflicts, Ad Hoc Committee on Ethics 2000, ABA Section of Business Law to ABA Commission on the Evaluation of the Rules of Professional Conduct (Sept. 15, 1999) (on file with The Business Lawyer, University of Maryland School of Law). The letter states: Such uncertainty at the time lawyers and their clients are attempting to establish the terms of their relationship serves no one and impedes their ability to enter into agreements for the rendering of legal services. Moreover, uncertainty concerning the validity of prospective waivers can prejudice other clients of the lawyer, depriving them of legal services they expect to receive and their lawyer expects to be able to render.
59. See MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.11.
60. ABA Final Report, supra note 13 (quoting from the section titled "Professional Independence of Judgment").
61. Id.
62. Even the ABA Commission on Multidisciplinary Practice accepted this argument. See Updated Report, supra note 14, pt. II(3). ("[E]quity investment could pose a particular threat to lawyer independence of professional judgment. The Commission was concerned that equity investors would be more interested in the bottom line rather than in service.")
63. See generally Steven Shavell, The Fundamental Divergence Between the Private and the Social Motive to Use the Legal System, 26 J. LEGAL STUD. 575 (1997) (discussing the possibility that socially beneficial litigation may not be brought if the private costs of that litigation are too great). Equity financing will not necessarily increase the amount of litigation because defendants too will have access to additional sources of financing. Some plaintiffs may be deterred from bringing suit as a result.
64. See, e.g., Ari Dobner, Litigation for Sale, 144 U. PA. L. REV. 1529, 1543-55 (1996) (surveying state laws and erosion of the common law rule).
65. See e.g., POSNER, supra note 28, ch. 1 (describing the legal profession in the United States for much of the twentieth century as "an intricately and ingeniously reticulated cartel" that has "weakened since the 1960s").
66. The self-serving and anticompetitive nature of the ethical rules promulgated by the legal profession has been widely discussed. See generally Richard L. Abel, Why Does the ABA Promulgate Ethical Rules?, 59 TEX. L. REV. 639 (1981); Thomas D. Morgan, The Evolving Concept of Professional Responsibility, 90 HARV. L. REV. 702 (1977).
67. The self-serving and anticompetitive nature of the ethical rules promulgated by the legal profession has been widely discussed. See generally Richard L. Abel, Why Does the ABA Promulgate Ethical Rules?, 59 TEX. L. REV. 639 (1981); Thomas D. Morgan, The Evolving Concept of Professional Responsibility, 90 HARV. L. REV. 702 (1977).
68. Richard Posner rejects the popular belief "that lawyers create their own demand," POSNER, supra note 28, at 65, but others support the idea. See, e.g., Paul H. Rubin & Martin J. Bailey, The Role of Lawyers in Changing the Law, 23 J. LEGAL STUD. 807, 807 (1994) (arguing that "the law is driven by the preferences of lawyers, not of litigants or of judges"); Peter H. Schuck, Legal Complexity: Some Causes, Consequences, and Cures, 42 DUKE L.J. 1, 26-38 (1992) (arguing that law has become more complex because, among other reasons, lawyers tend to benefit from complexity). See generally RICHARD A. EPSTEIN, SIMPLE RULES FOR A COMPLEX WORLD (1995). My own view is that lawyers, whether acting as advocates, legislators, regulators, or judges, will favor positions that favor themselves, like any other interest group. Thus lawyers in the aggregate will tend to support procedural (e.g., broad civil discovery, class actions) and substantive (e.g., broad regulatory schemes, new causes of action, multifactor balancing tests) rules that increase the demand for lawyers.
69. Richard Posner rejects the popular belief "that lawyers create their own demand," POSNER, supra note 28, at 65, but others support the idea. See, e.g., Paul H. Rubin & Martin J. Bailey, The Role of Lawyers in Changing the Law, 23 J. LEGAL STUD. 807, 807 (1994) (arguing that "the law is driven by the preferences of lawyers, not of litigants or of judges"); Peter H. Schuck, Legal Complexity: Some Causes, Consequences, and Cures, 42 DUKE L.J. 1, 26-38 (1992) (arguing that law has become more complex because, among other reasons, lawyers tend to benefit from complexity). See generally RICHARD A. EPSTEIN, SIMPLE RULES FOR A COMPLEX WORLD (1995). My own view is that lawyers, whether acting as advocates, legislators, regulators, or judges, will favor positions that favor themselves, like any other interest group. Thus lawyers in the aggregate will tend to support procedural (e.g., broad civil discovery, class actions) and substantive (e.g., broad regulatory schemes, new causes of action, multifactor balancing tests) rules that increase the demand for lawyers.
70. Richard Posner rejects the popular belief "that lawyers create their own demand," POSNER, supra note 28, at 65, but others support the idea. See, e.g., Paul H. Rubin & Martin J. Bailey, The Role of Lawyers in Changing the Law, 23 J. LEGAL STUD. 807, 807 (1994) (arguing that "the law is driven by the preferences of lawyers, not of litigants or of judges"); Peter H. Schuck, Legal Complexity: Some Causes, Consequences, and Cures, 42 DUKE L.J. 1, 26-38 (1992) (arguing that law has become more complex because, among other reasons, lawyers tend to benefit from complexity). See generally RICHARD A. EPSTEIN, SIMPLE RULES FOR A COMPLEX WORLD (1995). My own view is that lawyers, whether acting as advocates, legislators, regulators, or judges, will favor positions that favor themselves, like any other interest group. Thus lawyers in the aggregate will tend to support procedural (e.g., broad civil discovery, class actions) and substantive (e.g., broad regulatory schemes, new causes of action, multifactor balancing tests) rules that increase the demand for lawyers.
71. For an empirical analysis of the dramatic increase in the number of lawyers, see Sherwin Rosen, The Market for Lawyers, 35 J.L. & ECON. 215 (1992).
72. See, e.g., Bates v. State Bar of Ariz., 433 U.S. 350, 385 (1977) (advertising by lawyers is commercial speech entitled to First Amendment protection); Goldfarb v. Virginia State Bar, 421 U.S. 773, 791-93 (1975) (minimum fee schedules invalidated under antitrust laws).
73. See generally Deborah L. Rhode, The Delivery of Legal Services by Non-Lawyers, 4 GEO. J. LEGAL ETHICS 209 (1990) (describing the history and demise of unauthorized practice restrictions).
74. See POSNER, supra note 28, at 63-64 ("Although the profession has not been thrown open to free entry, an accelerating accumulation of legal and especially economic changes over the past three decades has transformed the profession in the direction of competitive enterprise.").
75. See Background Paper, supra note 1, pt. I (describing and collecting studies on how accounting firms in many foreign countries can offer legal services directly to clients which would be prohibited in the United States).
76. See People v. Title Guar. & Trust Co., 125 N.E. 666, 668 (N.Y. 1919) (The "test by which to determine whether the given acts constituted practice of law . . . [is] the underlying inquiry whether such acts were . . . committed to the exclusive charge of attorneys or . . . might be performed by a layman.").
77. See Stefan F. Tucker, Chair, Section of Taxation, Written Remarks Before the ABA Commission on Multidisciplinary Practice, pt. II (Feb. 4, 1999), available in 〈http:// www.abanet.org/cpr/tuckerl.html〉 (arguing that the Model Rules of Professional Responsibility have "hampered the ability of lawyers to assimilate into this multidisciplinary world" and thus "must be overhauled").
78. Model Rule 5.7 permits lawyers engaged in the practice of law to offer "law-related services." MODEL RULES OF PROFESSIONAL CONDUCT Rule 5.7 (1999). For a critique of Rule 5.7, repeating many of the same criticisms of multidisciplinary practice discussed herein, see Dennis J. Block et al., Model Rule of Professional Conduct 5.7: Its Origin and Interpretation, 5 GEO. J. LEGAL ETHICS 739, 757-77 (1992).
79. Model Rule 5.7 permits lawyers engaged in the practice of law to offer "law-related services." MODEL RULES OF PROFESSIONAL CONDUCT Rule 5.7 (1999). For a critique of Rule 5.7, repeating many of the same criticisms of multidisciplinary practice discussed herein, see Dennis J. Block et al., Model Rule of Professional Conduct 5.7: Its Origin and Interpretation, 5 GEO. J. LEGAL ETHICS 739, 757-77 (1992).
80. See Randell S. Krosner, Testimony Before the U.S. House of Representatives Committee on Banking and Financial Services 6-10 (Apr. 29, 1998).
81. See Larry Ramirez, Chair of the General Practice, Solo and Small Firm Section, Oral Remarks at the ABA Commission on Multidisciplinary Practice Open Hearing (Feb. 6, 1999), available in 〈http://www.abanet.org/cpr/ramirezl.html〉.
82. Adams & Matheson, supra note 14, at 10 n.48.
83. See Daniel R. Fischel et al., The Regulation of Banks and Bank Holding Companies, 73 VA. L. REV. 301, 323-326 (1987), for a similar discussion of biased advice in the context of financial institutions offering multiple product lines.
84. Id. at 325.
85. See infra notes 37-38 and accompanying text.
86. See, e.g., RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW §§ 10.8, 10.10 (5th ed. 1998).
87. See Gramm-Leach-Bliley Financial Modernization Act, Pub. L. No. 106-102, 113 Stat. 1338 (1999).