Abstract

This Article considers the prospects for MDP, MJP, and ancillary business (collectively described in this Article as "Multidimensional Practice") in a world in which clients have varying degrees of sophistication. In particular, it considers whether aspects of multidimensional practice should be proscribed for all law firms and in all client relationships regardless of the sophistication of the client, or whether the better rule is to require the lawyer to disclose the fact of the multidimensional relationship to the client. Finally, it considers the problem of "invincible ignorance," the situation in which the client is incapable of adequately informing itself or understanding the implications of being represented by a firm engaged in Multidimensional Practice.

This Article argues that MDP, MJP, and ancillary business represent parts of a broader change in the delivery of legal service. The change is characterized by the fact that the type of professional services provided by lawyers have increasingly overlapped with those provided by nonlawyers or lawyers admitted in other jurisdictions. Recent attempts by the American Bar Association to arrest this change have been ineffective and the resolution of the issue will need to be accomplished by either the states or the marketplace. A starting point is to recognize that the most workable definition of the "practice of law" is the rendering of professional services to a person who believes that he or she is a client dealing with a lawyer. This definition of the practice of law suggests that restrictions on multidimensional practice should also be based on client understanding. In other words, as in the case of conflicts of interest and confidentiality, the sophisticated client should be able to agree to be represented by a lawyer who is not licensed in a particular jurisdiction, shares fees with a nonlawyer, or provides nonlegal services. This changes the focus of the rules limiting MDPs, MJPs and ancillary business to establishing how those who are not sophisticated are to be treated. The organized bar should devote time to thinking about this issue rather than promulgating proscriptions which are disregarded at best and impede efficient client services at worst.

Part II introduces the concepts of MDP, MJP, and ancillary business and discusses their relationship in a multidimensional practice. Part HI recounts the consideration of ancillary business, MDP and MJP by the House of Delegates of the American Bar Association (House). Part IV considers how the development of rules governing multidimensional practice inform the definitions of the "practice of law" and "legal services," and suggests a definition based on the expectations of the persons dealing with the lawyer. Part V considers whether, if the activities regulated as the practice of law are based on the understanding of the client, the duties attendant to the practice of law can be modified through agreement with the client and disclosure to the client. Finally, Part VI introduces the concept of "invincible ignorance" and suggests that any system based on agreement and disclosure will need to address those who are incapable of intelligently agreeing to or comprehending limitations on the lawyer's duties.

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