Page 17 - MDPs - Chapter 14 - Multidisciplinayr Practice and Partnershps
P. 17
an issue even if there is a central billing system because the function would be bookkeeping rather than
fee sharing.
However, WSG and PSI may create other ethical concerns, such as the unlicensed practice of a profession,
multi-jurisdictional practice, professional referral fees, advertising and others.
[1]—Unauthorized Practice of Law by an Association
As was set out in the opening example, John pays a fee to PSI each year in order to have access not only
to the resources but also to receive referrals from other members with whom he works on cases. He also
knows that 30% of the fee goes to marketing the organization to consumers and small businesses. WSG’s
principal purpose is to allow Judy and leading professional firms to gain access to resources and network
with other professionals, but also to market WSG as an alternative to the Big 5 MDPs. Over 50% of WSG’s
budget is dedicated to internal and external marketing. Is PSI or WSG practicing law?
The purpose of the attorney prohibition on assisting others in the unauthorized practice of law is to
protect the public from the consequences of incompetent legal services. Because the definition of the
practice of law is unclear and varies from state to state and country-to-country, one must look to specifics
to determine whether promotional activities by an entity come within the scope of law practice.
Matching services create a database where clients can post needs and be matched with lawyers who
perform legal services. This could not reasonably be said to be the unauthorized practice of law."38 Under
EC 3-5, the practice of law relates to the “rendition of services for others that call for the professional
judgment of a lawyer.” Professional judgment is further defined as the “educated ability to relate the
general body and philosophy of law to a specific legal problem of a client.39 The underlying rational for
the rules is the assumption that there is a client. Marketing assumes that there is no client and therefore
it cannot be the unauthorized practice of law.
In the case of an online listing service, there are no practice of law issues since the service is not providing
legal services but information, which is protected speech. Attorneys need to be sure that the information
in the directory or online is in compliance with state bar regulations relating to their listings.
Online directories that are searchable by practice area means that lawyers, particularly if they specialize,
may be tempted to practice outside of the jurisdictions in which they are admitted. In addition, from time
to time a lawyer with a particular expertise is featured in WSG publications. If these lawyers are hired,
does PSI or WSG incur liability for promoting unlicensed practice by attorneys not admitted to the bar?
While the technology aspects of these issues have not been addressed,"40 there is no reason to think that
the general rule should not apply. For example, while the behavior might be frowned upon, courts have
held that in disaster or mass torts that marketing by law firms from other jurisdictions is not practicing
law. Even if the rule should be changed, given that the solicitation rules are enforced by the jurisdiction
that admitted the attorneys, these jurisdictions may have little interest in enforcing prohibitions in
38 Schmidt, Lawyers vs. The Internet WSJ, R36 (July 17, 2000).
39 Annotated Model Rules 444, 1995.
40 William E. Homsby, Jr., Marketing and Legal Ethics, ABA 2000 at 125
12
fee sharing.
However, WSG and PSI may create other ethical concerns, such as the unlicensed practice of a profession,
multi-jurisdictional practice, professional referral fees, advertising and others.
[1]—Unauthorized Practice of Law by an Association
As was set out in the opening example, John pays a fee to PSI each year in order to have access not only
to the resources but also to receive referrals from other members with whom he works on cases. He also
knows that 30% of the fee goes to marketing the organization to consumers and small businesses. WSG’s
principal purpose is to allow Judy and leading professional firms to gain access to resources and network
with other professionals, but also to market WSG as an alternative to the Big 5 MDPs. Over 50% of WSG’s
budget is dedicated to internal and external marketing. Is PSI or WSG practicing law?
The purpose of the attorney prohibition on assisting others in the unauthorized practice of law is to
protect the public from the consequences of incompetent legal services. Because the definition of the
practice of law is unclear and varies from state to state and country-to-country, one must look to specifics
to determine whether promotional activities by an entity come within the scope of law practice.
Matching services create a database where clients can post needs and be matched with lawyers who
perform legal services. This could not reasonably be said to be the unauthorized practice of law."38 Under
EC 3-5, the practice of law relates to the “rendition of services for others that call for the professional
judgment of a lawyer.” Professional judgment is further defined as the “educated ability to relate the
general body and philosophy of law to a specific legal problem of a client.39 The underlying rational for
the rules is the assumption that there is a client. Marketing assumes that there is no client and therefore
it cannot be the unauthorized practice of law.
In the case of an online listing service, there are no practice of law issues since the service is not providing
legal services but information, which is protected speech. Attorneys need to be sure that the information
in the directory or online is in compliance with state bar regulations relating to their listings.
Online directories that are searchable by practice area means that lawyers, particularly if they specialize,
may be tempted to practice outside of the jurisdictions in which they are admitted. In addition, from time
to time a lawyer with a particular expertise is featured in WSG publications. If these lawyers are hired,
does PSI or WSG incur liability for promoting unlicensed practice by attorneys not admitted to the bar?
While the technology aspects of these issues have not been addressed,"40 there is no reason to think that
the general rule should not apply. For example, while the behavior might be frowned upon, courts have
held that in disaster or mass torts that marketing by law firms from other jurisdictions is not practicing
law. Even if the rule should be changed, given that the solicitation rules are enforced by the jurisdiction
that admitted the attorneys, these jurisdictions may have little interest in enforcing prohibitions in
38 Schmidt, Lawyers vs. The Internet WSJ, R36 (July 17, 2000).
39 Annotated Model Rules 444, 1995.
40 William E. Homsby, Jr., Marketing and Legal Ethics, ABA 2000 at 125
12
