July 15, 2000 Associate Editor Regular News Barnett says lawyers must keep pace with changing times Mark D. Killian Associate Editor The legal profession is in transition and if lawyers ignore the inevitable changes ahead, they run the risk of sacrificing the profession’s core values. “It is no secret that we are in the midst of a sea change the likes of which the business world — and most especially the legal profession — has never seen before,” ABA President-elect Martha Barnett told those gathered at the 50-year member luncheon at the Bar’s Annual Meeting in Boca Raton. The current debate about multi-diciplinary practices — now prohibited to the extent they involve fee splitting and nonlawyer partnerships — is a good illustration of one of the significant challenges lawyers have in dealing with the dramatic changes facing the profession, said Tallahassee’s Barnett. “The law firm of the future might be a virtual one without walls, or an accounting firm, or a professional services firm,” Barnett said, adding that she expects MDPs to become common. Barnett said as early as the 1920s, the Canons of Ethics prohibited MDPs and cautioned lawyers against being “controlled or exploited by any lay agency, personal or corporate, which intervenes between client and lawyer.” Those prohibitions have been codified in the Model Code of Professional Responsibility and Rule 5.4 (which embodies the prohibitions on fee splitting and partnerships) has been adopted in some version by almost every jurisdiction except the District of Columbia. In the 1980s, Barnett said, a special ABA commission examining the Code of Professional Responsibility recommended the restrictions be lifted, finding that relationships between lawyers and nonlawyers would not adversely affect a lawyer’s independent judgment or vigorous representation of his or her clients. When it was presented to the ABA House of Delegates, however, it was soundly defeated, she said. But the MDP debate has been renewed with at least 40 states and local bars now having commissions evaluating the impact of any changes. “The Florida Bar is one of the states that oppose MDPs,” Barnett said. “Others support relaxing the rules. Most are still studying.” Barnett said the same concerns that characterized the MDP debate in the 1920s, 1960s, and 1980s are present today — the impact on the core values of the profession — independence, confidentiality, loyalty, competence, and public service. “They are legitimate and no less valid or important,” Barnett said. “But things have changed. The world has changed.” Those changes, Barnett said, include: Similar changes in other professions such as banking, insurance and financial firms combining or communications companies bringing TV, radio, the Internet and other services together. Globalization of the economy. Client demands for efficiency and one-stop shopping. Lawyer demands for efficiency one-stop delivery mechanics. “I believe those changes will impact the ultimate resolution of the issue, although they may not effect the outcome of the immediate debate in the profession,” Barnett said, noting the Conference of Chief Justices will take up MDPs at its fall meeting and four proposals — including one to abolish the ABA special MDP commission — have been filed for consideration at the ABA Annual Meeting. Barnett says lawyers must keep pace with changing times “We should ask if some of the opposition is the natural resistance to change, whether we are using our concept of core values as a shield or an excuse,” Barnett said. “Are we afraid of losing something more than the core values? Perhaps the status quo?” She said lawyers now have the chance to seize the future by using their expertise and commitment to the profession’s core values to shape the future. “Or, we can ignore the inevitable changes that are taking place and run the risk of losing something very important,” Barnett said. She said she recently came across an analogy that captured her concerns for the profession. It compared the legal profession to the Titanic. “Thought to be the most secure of human creations, both its builders and those who sailed it saw it as unsinkable,” Barnett said. “Indeed, books and films about the Titanic’s voyage suggest that the principal focus of both passengers and crew was upon what happened aboard the ship itself — who was entitled to eat with the first class passengers, what the dress was to be for a given evening, which persons were entitled to the captain’s time.” The drama of the Titanic story, Barnett warned, is while those on the ship were focused inward, important events were happening in the environment around them. “The significant reality took the form of an iceberg whose impact might well have been predicted if only those in charge had been paying attention,” Barnett said, wondering if the legal profession is in the position of the Titanic. “While it is not going to sink in the next 12 hours, for too long I believe we have focused our attention on our history, our traditions, and our interests — as noble as they may be — and have ignored what is happening around us,” she said. “Our friends in the accounting profession have actually done us a big favor with their competitive intrusions in the practice of law,” Barnett said. “I think they have woken a sleeping giant. I hope so.” The challenge for the profession is to preserve the values and time-honored principles that have always distinguished lawyers. She said values such as service to clients, to the public and to the poor must continue to guide the profession. “Principles, such as the independence of the judiciary and just as important, the independence of the lawyer, must be honored and protected,” Barnett said. “It is our responsibility to make the constitutional promise of access to justice a reality. As we settle into this new century and get comfortable with the new millennium, it is more important than ever.” Barnett also said the profession is increasingly under attack by those who want to deliver legal services but don’t want to get a law degree, and now by elected officials. “Similar things are happening around the country,” Barnett said. “Judge bashing has become all too common. It is one thing to criticize a particular decision on the merits; it is quite another to `label’ the judge and threaten impeachment.” Barnett said lawyers must find ways to ensure the profession remains a profession and does not become just another lucrative business opportunity. “In order to preserve our cherished core values, they must continue to have relevance, not just to lawyers, but to the public and to our clients,” she said.