Reporter Peter H. Lewis noted the following in the May 4, 2000, edition of “Circuits”, the technology section of the New York Times, at page G1:
As if you haven’t already read or heard enough about the proposal to cleave Microsoft, you can follow the link and view the document in one of three formats: in Hypertext Markup Language (HTML) . . . in Adobe’s Portable Document Format (PDF) . . . or as a WordPerfect document (WPD) . . . . Besides the government’s petulance in not making the document available in the popular Microsoft Word’s .doc format, what do you notice? The operating system does not matter. HTML is the common language of the Web, and it is operating system agnostic . . . . The operating system is just the dial tone that you need to make a call to the Internet.
What is the common language of professional services, the dial tone we need to connect with our customers and clients? In my view, the common language of professionals is that of problem-solving. Professionals in law, therapy, accounting, engineering, and other fields should be naturally and unshakably united in that pursuit. After all, the goal of any successful business, including a professional business, is to achieve the clients’ legitimate aims quickly, cost effectively, and qualitatively.
Multi-disciplinary practice (“MDP”) becomes a non-issue (“no big deal”) when considered from the perspective of problem solving. Indeed, the ADR community has a lot to say about MDP, since we use MDP approaches every day of our professional lives. We mediators take it as articles of faith that no one discipline has a monopoly on truth; all of us know more than any one of us; and collaborative problem solving works better (more efficiently, creatively, and elegantly) than single-frame solutions.
Even trial practice involves exposing decision-makers to experts’ opinions from a wide (and ever expanding) variety of disciplines, in a search for “the truth”. We mediators may prefer cooperative use of experts as contrasted with a battle of experts (education versus counter-education), but the goal is the same: to illuminate a problem that cries out for a solution.
So what is the struggle over MDP? What is the “big deal”? From the perspective of each discipline, the fight is first and foremost over its identity and self-preservation. What does it mean to be a “lawyer” if non-lawyers (read, “everyone else”) are allowed to resolve disputes? What does it mean to be a “therapist” if non-therapists are permitted to create interventions in which people heal their relationships? What does it mean to be a “CPA” if non-CPA’s are able to evaluate complex financial information and render advice about it?
Beneath the identity issue rests a deeper set of issues, such as the preservation of existing systems, customs, and comfort levels both emotional and financial. The accounting field confronted this issue several years ago, when American Express fought for (and won) the commercial right to hire and share fees with CPA’s, while competing with “traditional” firms for consumer business. Managed care has rocked the mental health profession, in which unlicensed gatekeepers have been accused of directing and limiting professional prerogatives. The legal profession here in New Jersey has at various times accused CPA’s, realtors, independent paralegals, do-it-yourself forms services, non-lawyer ADR providers, and even Philadelphia lawyers of encroaching upon its turf.
When the American Bar Association’s MDP Commission began exploring the nuances of MDP and its effects on the “traditional” practice of law, many practitioners (including this one) concluded that MDP is already here; that the exceptions have largely swallowed the rules limiting or prohibiting joint practice and fee sharing arrangements by multiple professions; and that to maintain integrity and credibility with the public, other professions, and ourselves we would be better off shaping change rather than resisting it or, worse, pretending it wasn’t there.
In the face of ethics rules “strictly” prohibiting fee sharing between lawyers and members of other professional groups, what has actually happened? Practitioners of different disciplines often share common clients, work on problem solving together, and bill clients separately. Practitioners of one discipline frequently hire full-time experts from another discipline, perhaps as non-shareholders in name, but subject to various economic rewards that are clearly tied to company profits. Professional entities from different disciplines sometimes share resources, costs, information, and support personnel, and may be tied in all but name. In Washington, D.C., Canada, Australia, and a number of European nations, there is outright integration of once-distinct professional practices, such that MDP has become the cultural “norm”.
Some might ask, if MDP already exists despite restrictions, then why bother changing the rules? What is to be gained? And who exactly is clamoring for change? Although pragmatism plays a role, at this early stage of policy development, my answers to these questions are more properly philosophical than practical.
As a matter of policy, “old” professional paradigms have not kept pace with actual practice developments. Rules disconnected from substance, like structures without integrity, tend to collapse. If the rules are not being followed, a student of jurisprudence or sociology might well ask, then what are the actual rules? And how does a regulated profession hold itself up as a model to its members and the public it serves if it “says” it stands for one thing, when “in fact” it is doing quite another? It is a fundamental precept of criminal and civil law that we must be as we seem, that rules must have a fundamental relationship to the world as it actually exists, or cease to have meaning and relevance.
The MDP debate also raises a more fundamental question for the affected professions: who are we, why are we here, what value do we add, what are our core attributes and values, what parts of our past should we retain, and what should we discard? By pressing for professional redefinition, we will more powerfully connect with our peers, our clients, and ourselves.
As professional facilitators and negotiators, we members of the ADR community also need to pose a question from the other side of the coin: what positive value will we generate by negotiating MDP policy changes? Currently, MDP policy changes are warmly embraced by some and bitterly resisted by others. Our challenge as professional dispute resolvers is to promote MDP policy changes that simultaneously address the legitimate needs, concerns, and desires of both MDP “embracers” and “resisters”.
For example, if the issue is enforcement of multiple ethics and disciplinary codes, then we should commit ourselves to creating effective solutions, such as making the professional entity responsible for the acts of its members and answerable to all professional boards represented within the MDP.
If the issue is consumer protection, then owners of the MDP and the entity itself could be made answerable in damages for the negligent professional acts of any member. As a condition of legal recognition, the MDP could be required to maintain a minimum amount of professional liability insurance, ensuring that all represented professionals are covered for their acts. Licensed employees could be required to supervise non-licensed employees, non-licensed owners and employees could be directed not to interfere with licensed professional judgment, and licensed professionals could be required to exercise independent judgment.
If the issues are financial protectionism, fear of competition, or fear of change, then we professionals must adjust and adapt ourselves to current marketplace realities, recognizing that no business can immunize itself from the effects of the marketplace.
As the ABA’s MDP Commission recommended in its 1999 Report, in a comment applicable to all professions,
The profession should adopt and maintain rules of professional conduct that protect its core values, independence of professional judgment, protection of confidential client information, and loyalty to the client through avoidance of conflicts of interest, but should not permit existing rules to unnecessarily inhibit the development of new structures for the more effective delivery of services . . . .
I am not convinced that the marketplace itself is clamoring for MDP or that any single segment of the professional community is pushing for it. Rather, I believe that, as in technology development, the “imaginable” becomes “the inevitable” and develops a momentum of its own. I also believe that MDP’s will create and encourage certain market efficiencies and team building opportunities that current non-integrated systems lack. We simply lack an understanding of what these genetically engineered professional “animals” will look like once they are created.
At the ABA Dispute Resolution Section’s recent Annual Meeting in San Francisco, several speakers noted that business and transactions professionals (especially in large corporate or business settings) have much less difficulty with MDP and conflicts of interest analysis than do trial lawyers and that ADR professionals in smaller firm settings are particularly well placed to take advantage of favorable MDP policy changes. They explained that business and commercial clients are generally willing to waive real and apparent conflicts of interest between and among professional firms and groups, “to get the deal done”. That understanding tends to freeze over, however, when a litigation group asks a former (or present) client whether it would mind very much being sued by its former (or present) litigation counsel.
For that reason, and quite apart from MDP considerations, these speakers noted that it is becoming increasingly difficult for transactions professionals to co-exist within the same entity as litigation professionals and vice versa. Does this mean that transactions professionals from CPA firms and law firms actually have more in common than transactions lawyers and litigators? Should transactions professionals from different disciplines be permitted to join forces in the service of clients and, along the way, share profits and losses if they so choose?
For reasons of conflict of interest, as has also been reported, prospective clients may pass over lawyer-trained professional mediators who remain in litigation and/or transactions firms. If those mediators abandon the large firm, join with professionals from other disciplines and form a new entity for client-centered services, such as consulting, accounting and financial, engineering, and conflict resolution, what exactly is that entity in the practice of? Although its professionals are duly licensed in their respective fields, what kind of firm would it be? Simply because it is difficult to define, should we regulate it out of business, despite its clear capacity to perform marketable, efficient, high quality, cost-effective, and speedy services? If we do that, aren’t we then rewarding less efficient business entities that happen to be easier to define, understand, and regulate?
With MDP, no one doubts that the issues are complex, the feelings run deep, the financial and professional identity stakes are high, and that it will take a lot of time and careful thought to work things out. However, at the end of the day, it is my firm belief that MDP will become a set of economic and practice realities for all of us; that ADR professionals will be in the forefront of that movement; and that our professional dispute resolution community here in New Jersey and across the country will play an increasingly influential and instrumental role in shepherding the changes.
In my mediation practice, when faced with seemingly insoluble challenges, I often turn to Abraham Lincoln’s evocative pre-Civil War description of ultimate struggle. For the United States to maintain slavery, he said, was like holding a tiger by its tale: “You can’t hang on and you can’t let go.” As in any good negotiation, with MDP we need to find the third path. We have no real choice. We have to make friends with the tiger.