Chapter 1
1. American Bar Foundation, Lawyers Statistical Reports. In one four-year period, 1980 to 1984, the profession grew by 107,000.
2. Source: 2000 Edition ABA Approved Law Schools, at 450.
3. Data incomplete for this year.
4. U.S. Industry & Trade Outlook ‘99 (The McGraw-Hill Companies U.S. Department of Commerce/International Trade Administration) Table 49-8, at 49-10. The most recent Lawyer Statistical Report of the American Bar Foundation reported the total number of lawyers in 1995 as 857,931.
5. Source: 2000 Edition ABA approved Law Schools, at 450.
6. These figures were derived from the American Bar Foundation, 1985, 1988 and 1995 Lawyer Statistical Reports.
7. Defined id. at 242: Private association. A private association is any nongovernmental organization that does not qualify under private industry. It excludes legal aid, public defender, or educational institutions. Examples of private associations are trade associations, unions, special interest groups, public interest groups, and charitable and religious organizations.
8. American Bar Foundation, 1995 Lawyer Statistical Report, at 24.
9. See National Association for Law Placement, Class of 1988 Employment Report and Salary Survey (ERSS) (1990) at 118-121, Class of 1989 ERSS (1991) at 68-75, and Class of 1990 ERSS (1991) at 62-70; see also American Bar Association Young Lawyers Division, The State of the Legal Profession 1990, Chapter 14, "The Status of Women in the Profession," at 63-70.
10. See Judith S. Kaye, Women Lawyers in Big Firms: A Study in Progress Toward Gender Equality, 57 Fordham L. Rev. 111 (1988).
11. See Geraldine Segal, Blacks in the Law, Philadelphia and the Nation, 27 et seq. (1983).
12. See Pearson v. Murray, 168 Md. 478, 187 A. 590 (1936); Cf. Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938).
14. Association of American Law Schools Proceedings, Part One: Reports of Committees, at 159 (1964).
15. Report of the Philadelphia Bar Association’s Special Committee on Pennsylvania Bar Admissions Procedures, Racial Discrimination of Pennsylvania Bar Examinations, 44 Temple L. Q. 141, 182 (1971).
16. Source: 2000 Edition, ABA Approved Law Schools, at 453.
Chapter 2
1. This characterization of the law is of obscure origins.
2. J. P. Heinz & E.O. Laumann, Chicago Lawyers, at 56 (1982), reported that lawyers in their study tended to practice more than one specialty, reflecting the needs of their clients and not any logic of the law.
3. See Report of American Bar Association Standing Committee on Specialization (August 1990).
4. See web-site ABA Standing Committee on Specialization at www.abanet.org/specialization.
5. See N.Y.S.B.A. Report on the Future of the Profession (January 11, 1999) at 21-22.
6. See ABA Standing Committee on Specialization, Informational Reports to the House of Delegates, February and August 1999.
8. M. Crichton, Electronic Life, at 3 (1983).
11. ABA Legal Technology Resource Center, 1998 Small Law Firm Technology Survey Report; 1998 Large Law Firm Technology Survey Report; 1998 Corporate Law Department Technology Survey.
12. See Lawyer Advertising at the Crossroads, American Bar Association Commission on Advertising (ABA 1995), at 29-32. See also American Bar Association Commission on Advertising White Paper "A Re-Examination of the ABA Model Rules of Professional Conduct Pertaining to Client Development in Light of Emerging Technologies" (July 1998) (www.abanet.org/legalservices/whitepaper.html), at 2.
13. Bates & O’Steen v. State Bar of Arizona, 433 U.S. 350 (1977).
14. See Lori B. Andrews, Birth of a Salesman: Lawyer Advertising and Solicitation (1980).
15. Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978). The companion case of In re Primus, 436 U.S. 412 (1978), allowed solicitation of clients in non-profit settings.
16. See Appendices D and E to NYSBA Report (June 28, 1996).
17. Id.., White Paper, fn. 12 supra, at 3-4.
18. See NYSBA Report on the Future of the Profession (January 11, 1999) at 33-36.
19. Id.., Crossroads, fn.12, supra, at 48.
21. Id. at 50. The Yellow Pages frequently contain a Guide of Lawyers Arranged By Practice that bears the legend: "Lawyers in this guide have chosen to list themselves by Field of Law to which they concentrate their practice. This guide may not include all lawyers." The following Fields of Law are commonly listed:
|
Accidents-Personal Injury/Property Damage |
Health Care & Hospital Law |
|
Administrative & Governmental Law |
Immigration & Naturalization |
|
Admiralty & Maritime Law |
Insurance Law |
|
Adoption Law |
International Law |
|
Alcoholic Beverages Practice |
Labor & Employment Law |
|
Appellate Practice |
Landlord & Tenant |
|
Bankruptcy |
Malpractice Law-Legal & Medical |
|
Civil Rights Law |
Marital & Family Law |
|
Civil Service Law |
Mediation |
|
Consumer Law |
Patent Law |
|
Copyright Law |
Pension & Profit Sharing Law |
|
Corporation, Partnership & Business Law |
Product Liability |
|
Criminal Law |
Real Property Law |
|
Custody Law |
Securities Law |
|
Debt Collection |
Social Security Law |
|
Driving While Intoxicated & Drug Defense |
Taxation |
|
Elder Law |
Trademark Law |
|
Entertainment Law |
Trial Practice |
|
Environmental Law |
Vehicle & Traffic Law |
|
Estate Litigation |
Veterans Benefits |
|
Estate Planning & Administration |
Wills, Trust & Probate Estates |
|
Family Law |
Workers’ Compensation |
|
Franchise Law |
Zoning, Planning & Land Use Law |
27. Id.. White Paper, fn. 12 supra, at 25.
28. Harrison Tweed, The Changing Practice of Law (1955).
29. See infra, The "large firm" phenomenon.
Chapter 3
1. See W.K. Hobson, "Symbol of the New Profession: Emergence of the Large Law Firm 1870-1915," reprinted in The New High Priests: Lawyers in Post-Civil War America, at 5-7 (Gawalt ed., 1984).
2. See F. Zemans & V. Rosenblum, Making of A Public Profession, at 65-66 (1981).
3. W. Weinfeld, Income of Lawyers, 1929-48 in U.S. Department of Commerce, Survey of Current Business (August 1949).
4. See D.D. Landon, Country Lawyers–The Impact of Context on Professional Practice, at 9-10 (1990).
5. See Zemans & Rosenblum, supra, at 65-90. Heinz & Laumann estimated that somewhat more than half (53 percent) of the total effort of Chicago’s bar at the time of their study done in the late 1970s was devoted to the corporate client sector. J.P. Heinz & E.O. Laumann, Chicago Lawyers, at 42 (1982).
6. See S.R. Hickerson, Structural Change in Nebraska’s Legal Profession, 15 Creighton L. Rev. 1, 21 (1981); Weinfeld supra; R.H. Sander & E.D. Williams, Why Are There So Many Lawyers? Perspectives on a Turbulent Market, 14 Law & Soc. Inquiry 431, 478 (1989); and R.L. Sandefus & E.O. Laumann, Changing Patterns of Income Stratification in the Chicago Bar (1997), unpublished paper presented at Law & Society Association annual meeting in St. Louis, at 16-17.
7. Sandefus & Laumann, supra id..
8. Sources: B.A. Curran, The Legal Profession in the 1980s: A Profession in Transition, 20 Law & Society Rev. 19 (1986); American Bar Foundation 1988 Supplement to the Lawyer Statistical Report; C.N. Carson, The U.S. Legal Profession in 1995 (American Bar Foundation 1999).
9. See National Resource Center for Consumers of Legal Services, Legal Plan Letter (1997 Legal Services Plan Census) February 1998, at 1.
10. See Eve Spangler, Lawyers for Hire, Salaried Professionals at Work (1986).
11. J.P. Heinz & E.O. Laumann, Chicago Lawyers, The Social Structure of the Bar 319 (1982); cf. J.P. Heinz, E.O. Laumann, R.L. Nelson &.E. Michelson, The Changing Character of Lawyer’s Work: Chicago in 1975 and 1995, 32 Law Society Review 751 (1998).
12. See P.D. Landon, Country Lawyers - The Impact of Context on Professional Practice 9-10 (1990).
13. See P. Langrock, Beyond the Courthouse - Tales of Lawyers and Lawyering, (Paul S. Eriksson, Publisher) 1999.
14. Solo practice: 34.7%; small firms 16.8%; combined 51.5%. Clara N. Carson, The Lawyer Statistical Report - The U.S. Legal Profession in 1995, American Bar Foundation (1999).
19. D.D. Landon, supra, at 96; C. Seron, The Business of Practicing Law - The Work Lives of Solo and Small-Firm Attorneys, Temple University Press (1996).
20. See C. Seron, id. at 79-82. Eve Spangler, in Appendix A to her book on salaried lawyers, surveys the scholarly literature on "Solo Practitioners" and summarizes the findings to be compared with her findings regarding the work life of salaried lawyers who are in large law firms, corporate staff counsel, civil service attorneys and legal services advocates. (Eve Spangler, supra note 10, Appendix A at 199-212).
21. National Association of Law Placement, Class of 1997 and 1998 Surveys, at 21 and at 28, respectively.
22. C. Seron, Temple University Press (1996).
24. Id. at 17-18. The President of the Erie County, New York, Bar Association, Donald Eppers, recently observed: "Most attorneys have a sense that they’re working harder to earn less." Buffalo Law Journal, Nov. 22, 1999, at 1.
25. See Economics of Legal Services in Illinois - A 1975 Special Bar Survey, 64 Ill. Bar Jour. 73-102 (1975); Preliminary Report: Results of Survey on Certification of Specialists, 44 Cal. St. Bar Jour. 140, 142-144 (1969).
26. California State Bar Association, Survey Results (September 1991), at 26 and 27.
27. See American Bar Association Young Lawyers Division, The State of the Legal Profession 1990, at 14.
28. T.C. Fischer, Legal Education, Law Practice and the Economy: A New England Study (1990), at 80. The California 1991 Survey, supra note 37, at 25, reported that the areas practiced in by the greatest number of individual attorneys were Business Law, Real Estate, Plaintiffs’ Personal injury, Domestic Relations, Landlord-Tenant and Bankruptcy.
29. Final Report of the NYSBA Special Committee on the Future of the Profession (January 11, 1999), at pp. 6-7.
30. Joe Catalano, "Here Come the New Contracts," Newsday, Jan. 13, 2000, at C6; Daniel Wise, "Suit Seen Near in Bar’s Dispute With Realtors," N.Y.L.J., Jan. 10, 2000, at 1; "Agents and Lawyers Battle Over Real Estate Contracts," The New York Times, Dec. 12, 1999, Sec. 14 at 1, 14.
31. J. Atkinson, Assisting Children and the Courts, 83 Judicature No. 1.
32. For an appraisal of the distinctive character of a matrimonial law practice, see Sarat & Felstiner, Law and Strategy in the Divorce Lawyers Office, 20 Law & Soc’y Rev. 93-134 (1986).
33. In an address to the National Council of Juvenile and Family Court Judges in November 1999, Chief Judge Judith S. Kaye called for a radical departure from "the traditional adversary model" of judging in Family Court matters, suggesting that jurists take a hands-on approach to addressing the health and safety needs of children and that "simply issuing an order and moving on to the next case may not give the greatest assurance that the child’s best interests will be protected." New York Law Journal, Nov. 16, 1999, at 1.
34. See The New York Times, Oct. 23, 1999, at B2.
35. See proceedings of NYSBA House of Delegates, June 26, 1999, in Cooperstown, NY and proceedings of ABA House of Delegates, August 9-10, 1999, in Atlanta, GA.
36. Seron, supra note 19, at 137.
37. See id. at 105-09. See also Daniels & Martin, "It’s Darwinism – Survival of the Fittest: How Markets and Reputations Shape the Way in Which Plaintiffs’ Lawyers Obtain Clients," 21 Law & Policy 377 (1999).
38. See discussion of "Networks and Affiliation Groups" in Galanter & Palay, Tournament of Lawyers 130 (1991).
39. Wall Street Journal, October 8, 1999, at B1.
40. Code of Professional Responsibility, EC 1-1.
41. Reginald H. Smith, Justice and the Poor (1919).
42. It was not until the Scottsboro case in 1932 that the right to legal representation in state courts even in capital cases was recognized. Powell v. Alabama, 287 U.S. 45 (1932). See John M. Maguire, The Lance of Justice, 238-245 (1928), for a history of legal aid 1876 to 1926.
43. See R.L. Abel, American Lawyers (1989), at 131.
44. Johnson v. Zerbst, 304 U.S. 458 (1938).
45. Gideon v. Wainwright, 372 U.S. 355 (1963).
46. Argersinger v. Hamlin, 407 U.S. 25 (1972).
47. See E. Johnson Jr., "The Neighborhood Lawyer Experiments and the Goal(s) of Social Reform" in Justice and Reform (1974, new edition 1978), at 21-35.
48. Richard Kluger, Simple Justice, Vantage Press (New York, 1975).
49. See E. Johnson, supra note 47, at 5-10: A Brief History of the Legal Aid Movement; see also, R.L. Abel, Law Without Politics: Legal Aid Under Advanced Capitalism, 32 UCLA L.Rev. 474, 502 (1985).
50. See, for example, The Alabama Code of Ethics of 1887 setting forth a code of duties for attorneys and concluding with the duty to be a friend to the defenseless and the oppressed.
51. See M.L. Schwartz Changing Patterns of Legal Services in Law in a Changing Society, 109-124 (Geoffrey Hazard, ed. (1968)).
52. See E. Johnson, supra note 47, at 39-70: Birth of the Federal Program.
53. Id., at 7-102: Development of Local Legal Services Organizations.
54. Id., at xxix. See also A.W. Houseman, A Short Review of Past Poverty Law Advocacy, Clearinghouse Rev. 1514 (April 1990).
55. R.L. Abel, American Lawyers, Tables 5 and 6, at 254-255.
56. A striking example of what happened following the 1982 budget cut was the closing in 1983 of the Southeast Legal Aid Center in Compton, California, requiring the State Bar to take responsibility for some 36,000 case files abandoned by the Legal Aid Center. R.L. Abel, supra note 43, at 133.
57. See National Legal Aid and Defender Association 1998/99 Directory, 17-123 (1998).
58. Legal Services Corporation, 1997 at a Glance.
59. Anthony Lewis, Gideon’s Trumpet (1964).
60. R.L. Abel, supra note 43, at 131, citing D.J. Scari, "The Financial Impacts of the Right to Counsel for Criminal Defense of the Poor," Law & Society annual meeting, San Francisco (May 1979).
62. 1988 is the latest year for which there is data of this kind available from the National Criminal Justice Reference Service, U.S. Department of Justice, Bureau of Justice Statistics (July 1990 Bulletin).
63. National Legal Aid and Defender Association, The Other Face of Justice at 83 (1973); P.B. Wise, The Endangered Species: America’s Private Criminal Lawyers (1973).
64. National Legal Aid and Defender Association, 1998/99 Directory (1998), at 127-189.
65. Information provided by Susan Hendricks, Deputy Attorney in Charge, Criminal Defense Division, New York City Legal Aid Society. Indicative of the fiscal constraints placed on the Legal Aid Society in recent years: in 1992, with a substantially larger average complement of 675 attorneys, the Criminal Defense Division handled 170,000 cases, 24,000 fewer than the Division handled in the 1999 fiscal year with 224 fewer attorneys.
66. See NLADA, 1998/99 Directory of Legal Services Offices.
67. See National Directory of Criminal Lawyers (B. Tarlow ed. 3rd Ed. 1991): a directory of lawyers who the editor represents have been evaluated for demonstrated ability and commitment to conscientious representation.
68. See "Unclogging Gideon’s trumpet," National Law Journal, January 10, 2000 at A1, relating to lawsuits challenging the lack of financial support for criminal defense of the poor and the resulting erosion of the Sixth Amendment right to counsel.
69. American Bar Association Reports, Standing Committee on Lawyer Referral Services.
70. Bates & O’Steen v. State Bar of Arizona, 433 U.S. 350 (1977).
71. Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975).
72. See B.F. Christensen, Lawyers for People of Moderate Means, Some Problems of Availability of Legal Services (1970) at 1-39; see also Report of the Staff to the Federal Trade Commission, Improving Consumer Access to Legal Services (1984).
73. G. Singsen, Report on the Survey of Legal Clinics and Advertising Law Firms, ABA Special Committee on Delivery of Legal Services (August 1990), at 1.
74. See L. Brickman, Expansion of the Lawyering Process Through a New Delivery System: The Emergence and State of Legal Paraprofessionalism, 71 Colum.L.Rev. 1153 (1971).
75. Carol Richards, Legal Clinics: Merely Advertising Law Firms? (ABA Special Committee on the delivery of Legal Services, November 1981), at 86.
77. Singsen, supra note 73, at 131-33.
78. Seron, supra note 19, at 126-27.
79. So advised by the Ohio Secretary of State’s office, 2-3-00.
80. PR Newswire: Wednesday December 8, 1999.
81. Mover, Jacoby & Myers’ Gail Koff keeps changing the face of legal profession, Long Island Newsday, April 10, 2000, at C8-C9.
82. PR Newswire: Tuesday November 16, 1999.
83. Singsen, supra note 73, at 132-33.
84. Seron, supra note 19, at 68-73. Compare the picture provided by Jerry Van Hoy, who describes the pressure from management to mislead clients. Franchise Law Firms and the Transformation of Personal Legal Services (1997).
86. The information on lawyer referral services is drawn from the Reference Handbook published in 1988 by the ABA Lawyer Referral and Information Service Committee and from Lawyer Referral and Information Services, A Profile at the Turn of the Century published by the Committee in 1999.
87. DontNeedALawyer.com at its website offers referrals to "lawyers, paralegals, accoutants and other professionals, in your areas, standing by, ready to assist you with a free initial consultation of 30 minutes by telephone." In New York, a recent amendment to the Code of Professional Responsibility (see DR 2-103(D)(3)) will permit lawyers to operate private for-profit referral services provided court rules are implemented to govern them.
88. See NAACP v. Button, 371 U.S. 415 (1963); Brotherhood of Railroad Trainmen v. Virginia, 377 U.S. 1 (1964); United Mine Workers of America v. Illinois State Bar Association, 389 U.S. 217 (1967); United Transportation Union v. State Bar of Michigan, 401 U.S. 576 (1971).
89. The Executive Director of the ABA’s American Prepaid Legal Services Institute states that it is difficult to determine which plans today are the largest, since the private commercial plans (other than Prepaid Legal Services, Inc.) consider that data proprietary.
90. Letter of Curtis R. Berger to Robert MacCrate, December 10, 1991.
91. See also Who’s Who in Prepaid Legal Services, published by the American Prepaid Legal Services Institute (1999).
92. NewsBriefs, "Bar Foundation Study Yields Prepaid–Lawyer Use Data," American Prepaid Legal Services Institute, Chicago (June, 1989).
93. National Resource Center for Consumers of Legal Services, Legal Plan Letter (February 1998) at 1; Alec M. Schwartz, executive director of the APLSI, greatly assisted the Committee in the development of the material on legal service plans.
94. Pursuant to the July 1999 amendments, closed panel prepaid legal service plans are now permitted in New York under DR 2-103(D)(4).
95. Barbara A. Curran, 1989 Survey of the Public’s Use of Legal Services, in American Bar Association Consortium on Legal Services and the Public, Two National Surveys: 1989 Pilot Assessments of the Unmet Legal Needs of the Poor and the Public Generally (September 1989), at 57.
96. ABA Consortium on Legal Services and the Public, Legal Services for the Average Citizen (Discussion papers 1977, reprinted 1978).
98. N. Aron, Non Traditional Models for Legal Services Delivery, presented at the ABA Conference on Access to Justice in the 1990s (May 1989).
99. See the listings of legal services programs in the NLADA 1998/99 Directory, at 17-123.
100. See "Fighting the good fight" "Breachhead for conservatism," National Law Journal, December 27, 1999 – January 3, 2000, at A10-A11, relating to the exoneration of death-penalty defendants and the Center for Individual Rights’ furthering of libertarian and conservative causes.
101. Justice Thurgood Marshall, "Financing Public Interest Law: The Role of the Organized Bar." Address to the Award of Merit Luncheon of the Bar Activities Section of the American Bar Association (August 10, 1975). (Quoted by N. Aron, Liberty & Justice for All (1988), at 2.)
102. See F. Zemans & V. Rosenblum, Making of a Public Profession, at 66 (1981).
103. T.C. Fischer, supra note 28, at 79.
104. See J.S. Studley, "Building on the Assets of Mid-size Firms," Manhattan Lawyer (November 1991), at 45.
106. See R.L. Nelson, Partners with Power: Social Transformation of the Large Law Firm (1988), at 1.
107. Sander & Williams, supra note 6, at 478.
108. L.W. Friedman, A History of American Law (1985), at 636.
109. W.K. Hobson, supra note 1, at 141 et seq., Chapter 5 "Rise of Large Law Firms."
110. Cited by Sander & Williams, supra note 6, at 436; the Census figures did not distinguish between salaried lawyers and other salaried employees.
111. Galanter & Palay, supra note 38, at 20-36.
112. Galanter & Palay, supra note 38, at 77-110.
113. The National Association for Law Placement’s Directory of Legal Employers indicates that nearly all firms with more than 100 lawyers list over a half-dozen specialties covering most major areas of corporate law (even though many are best known for a single specialty). Cited in Sander & Williams, supra note 6, at 436, fn. 14.
114. It has been suggested that 25% of the corporations going public change law firms in the process. R.L. Abel, supra note 43, at 184.
115. See G. Taylor, Party’s Over in Insurance, National Law Journal, September 23, 1991.
116. "Insurers score another victory," National Law Journal, November 29, 1999, at B1, B4; see also Chapter 12, Section 3.
117. J.W. Jones, The Challenge of Change: The Practice of Law in the Year 2000, 41 Vand. L. Rev. 683 (1988).
118. See B. Johnson, Administration Grows Up, Nat. L. Jour. (April 28, 1986) at 17.
119. S. Schmidt, Firm Development Mobilized by a "New Breed" of Resource, Nat. L. Jour. (August 25, 1986) at 15.
120. Galanter & Palay, supra note 38, at 123 (Table 7).
121. A government study of eight major professions in the 1940s found that lawyers had the most unequal distribution of income. U.S. Dept. of Commerce, Survey of Current Business (May 1944): in 1941, the most affluent 5% of lawyers accounted for 28% of all lawyer income.
122. Sander & Williams, supra note 6, at 446-451 (Table 10).
123. Id. at 466-467 (Table 14).
124. Id. at 450-451. It is appropriate to note that the less systematic and more limited surveys done by independent consulting firms and published in the legal press failed to report the general decline in income, but focused instead only on the general prosperity of "the most elite end of the lawyer spectrum."
128. Id. at 441. Included in receipts from individual clients are the contingent fees paid plaintiffs’ lawyers in personal injury and product liability cases. There are firms of every size, including many medium-sized firms, which specialize in handling these cases on a contingent fee basis.
131. R.B. McKay, The Rise of the Justice Industry and the Decline of Legal Ethics, 68 Wash. Univ. L. Quarterly 829 (1990), at 846.
132. E.J. Pollock, Big Firms Learn That They, Too, Are A Cyclical Business, Wall Street Journal (August 15, 1991), at 1.
133. The National Law Journal’s annual listing of the nation’s largest law firms, December 13, 1999.
134. See Galanter & Palay, supra note 38, Table 7, at 123; see also S. Brill, The Law Business in the Year 2000, American Lawyer (Management Report, June 1989); D. Bradlow, The Changing Legal Environment, The 1980s and Beyond, ABA Journal (December 1988), at 72.
135. Galanter & Palay, supra note 38, at 138.
136. See J. D. Donnell, The Corporate Counsel - A Role Study (1970), at 27-28.
137. B. Lyne, The Pressure Is On, Nat. Law Jour. (Corporate Counsel Supplement, Sept. 9, 1991), at 51. See also 2. Johnstone & D. Hopson, Lawyers and Their Work, Chapter 6: Corporate Law Departments (1967).
139. See W. S. Lipsman, American Corporate Counsel as In-House Advisers Overseas, ACCA Docket (Spring 1991), at 18.
141. Laurel-Ann Dooley, Law Firms Cope With Request for Proposals, National Law Journal, November 22, 1999, B1.
142. G.C. Hazard, Ethical Dilemmas of Corporate Counsel, 46 Emory L. Journal 1011-12 (1997).
143. Business Watch, National Law Journal, January 31, 2000, at 134.
144. U.S. Census Bureau, 1997 Census of Governments, vol. 1, at v.
145. The Municipal Year Book 1997, at 114-152.
146. 1991 Report of the National Association of District Attorneys.
147. This estimate is based on information provided by the National Institute of Municipal Law Offices (NIMLO), the Municipal Yearbook and the National Association of Counties (NACO).
148. The NYSBA staff estimates that between 12 and 15 percent of the 120,000 New York lawyers are government employees: 14,400 to 18,000. Letter from John A. Williamson, Jr., Associate Executive Director, February 23, 2000.
149. Many lawyers employed by state and local units of government seem to find no purpose in providing listing information to the Martindale-Hubbell Directory, the basis of the Lawyer Statistical Report, suggesting that the figure is significantly less than the actual number of lawyers employed by state and local governments.
150. E.N. Griswold, OuldFields, New Corne (1991), at 119.
151. 1995 Lawyer Statistical Report at 7.
153. "Public defender ranks shrinking", Poughkeepsie Journal, March 24, 2000, at 6A.
Chapter 4
1. We base this conclusion in large part on an examination of all of the Internet home pages of the 100 largest law firms in the United States and on a sampling of the 150 next largest firms (as ranked in the most recent National Law Journal "250" survey).
2. See Brief of Amicus Curiae American Association of Attorney-Certified Public Accountants, Inc. in Support of Petitioner, Ibanez v. State of Florida, No. 93-639, at 14 (Feb. 28, 1994); Nassau County Ethics Op. 86-37.
3. See generally ABA/BNA Lawyers’ Manual on Professional Conduct 81:2009, 81:3012-13 (1999) (collecting authorities); Jorge L. Carro & Lisa A. Martinez, Ohio’s Ethical Prohibition Against the Use of Dual Degrees in Letterheads: A Time for Change?, 18 U. Dayton L. Rev. 63 (1992); New York State Ethics Ops. 711 (1999) and 687 (1997); New York County Ethics Op. 685 (1991); Nassau County Ethics Ops. 92-12 and 92-18; Los Angeles County Ethics Opinion 477 (1994).
4. See, e.g., ABA Informal Ethics Op. 1422 (1978); Alabama Ethics Op. 86-101; Ohio Informal Ethics Op. 88-2; Philadelphia Ethics Op. 87-22.
6. See N.Y. County Ethics Op. 388 (1949); Note, Attorneys Who Are Also Certified Public Accountants May Properly Practice Both Professions in the Same Office. 63 Harv. L. Rev. 1457, 1458 (1950).
7. See ABA Informal Ethics Op. 83-1497 n.2; Massachusetts Ethics Op. 82-2; Michigan Ethics Op. CI-795 (1983); Texas Ethics Op. 406 (1983). See generally discussion in Chapter 12, Section 1.
8. See generally Darryl Van Duch & Edward Kensik, "Entrepreneurial Firms May Face Ethical Barriers," New Jersey Law Journal, Sep. 14, 1998, at 25.
9. See Thom Weidlich, "Law Firms Struggle to Define — and Describe — the Entity," National Law Journal, Dec. 21, 1992, at 32.
10. "Ancillary Businesses of the Nation’s 250 Largest Law Firms," National Law Journal, Dec. 21, 1992, at 31. See also Thom Weidlich, "Ancillary Businesses Prospering Quietly," National Law Journal, Dec. 21, 1992, at 1.
11. American Bar Association, "...In the Spirit of Public Service: A Blueprint for the Rekindling of Lawyer Professionalism," 112 F.R.D. 243 (1986) (the "Stanley Report").
12. Id. Stanley Report, at 280-81.
14. See generally Darryl Van Duch & Edward Kensik, "Entrepreneurial Firms May Face Ethical Barriers," New Jersey Law Journal, Sep. 14, 1998, at 25 (discussing Littler Mendelsohn, Howrey & Simon and Dickinson Wright).
17. "Bundling Legal Services with Others Gets Mixed Reviews," The Business Journal, Feb. 25, 2000, at 26; see also www.hklaw.com/whoweare/ancillary/index.shtml.
18. T. R. Goldman & Dierdre Shesgreen, "Lobby Talk: McGuire, Woods Ventures Out," Legal Times, Jan. 19, 1998, at 4.
19. See New York Law Journal, Jan. 11, 2000, at 1, col. 1.
20. See Newsday, Feb. 21, 2000.
21. They have done so notwithstanding the fact that the American Bar Association has sent an ambiguous message to the bar by reversing its position at least twice on the question of lawyers operating ancillary businesses. See generally William B. Dunn, "Legal Ethics and Ancillary Business," 74 Michigan Bar Journal 154 (Feb. 1995). See discussion in Chapter 12, Section 1.
22. The District of Columbia has permitted nonlawyer partners in law firms for several years. District of Columbia Rules of Professional Conduct, Rule 5.4(b) ("[a] lawyer may practice law in a partnership or other form of organization in which a financial interest is held or managerial authority is exercised by an individual nonlawyer who performs professional services which assist the organization in providing legal services to clients, but only if . . . the partnership or organization has as its sole purpose providing legal services to clients . . . ."). See generally Randall Samborn, "Non-Lawyers as Firm Partners: D.C. Court Expected to Approve Long-Awaited Ethics Rule Change," National Law Journal, Mar. 5, 1990, at 1.
23. Steven Wilmsen, "Law Firm Partners With Broker," Boston Globe, Oct. 5, 1999, at C6; "Legg Mason and Bingham Dana Form Joint Venture," Legg Mason press release, Oct. 4, 1999 (on file).
24. The Mintz Levin firm was one of the first to create subsidiaries to provide nonlegal services to clients. ML Global LLC, formed in 1996, advised clients on airport and seaport ventures, real estate issues and international business strategies. ML Strategies Inc., created in 1992, assisted clients on management issues in health care organization and compliance, public relations, government affairs and strategic planning. (These two wholly owned subsidiaries were merged in January 1999.) E. Douglas Banks, "Tocco Heads Up New Mintz, Levin Consulting Affiliate," Boston Business Journal, Jan. 1, 1999, at 9.
25. The Miller & Chevalier alliance prompted the first significant press coverage in the United States of the MDP issue and the activities of the "Big Six" accounting firms in other parts of the world. "Big Six Mobilize Legal Forces," International Tax Review, April 1997, at 1; "Price Waterhouse Forms Alliance with US Law Firm," International Accounting Bulletin, Feb. 27, 1997, at 4; Phillippa Cannon, "The Big Six Move In," International Financial Law Review, Nov. 1997, at 25.
26. Meera Somasundaram, "Local Law Firm Branches Out in Big 5 Link: Growing Services Under KPMG Deal," Crain’s Chicago Business, Aug. 16, 1999, at 22; Marthan Neil, "As Firm Here Forges Alliance With CPAs," Chicago Daily Law Bulletin, Aug. 9, 1999, at 1; Sara Hazlewood, "Coalition Blurs Lines Between Law Firms, Accountants," The Business Journal, Aug. 13, 1999, at 6; Laura Impellizzeri, "S.F. Law’s New Order," San Francisco Business Times, Aug. 20, 1999, at 1. The national firm of Holland & Knight LLP was originally announced as a participant in this venture but ultimately did not join. "KPMG Links Tax Practice to Morrison & Foerster," International Tax Review, Sept. 1999, at 5. Holland & Knight is no stranger to ancillary services, maintaining an Ancillary Professional Services Department (known as Holland & Knight Professionals) to provide technology services, translation services, government relations assistance, corporate relocation incentive assistance, employee benefits analysis, environmental services, corporate integrity services, and strategic planning advice, among other things, to clients of the law firm. Information derived from Holland & Knight LLP web site, URL www.hklaw.com/whoweare/ancillary/index.shtml.
27. See, e.g., Tom Herman, "Ernst & Young Will Finance Launch of Law Firm in Special Arrangement," Wall Street Journal, Nov. 3, 1999, at B10; Siobhan Roth, "Inside the Ernst & Young Deal," The Recorder, Nov. 10, 1999. Use of the Ernst & Young trade name as part of the firm name may or may not be permissible in the District of Columbia, depending upon whether it is viewed as deceptive or misleading to the public. District of Columbia Rules of Professional Conduct, Rules 5.4(b), 7.5(a); see District of Columbia Ethics Opinion 244 (1993) (permitting name of non-lawyer partner to be included in a law firm name assuming compliance with Rule 5.4(b)). McKee Nelson Ernst & Young is listed as part of Ernst & Young Intenational in Ernst & Young 2000 Worldwide Corporate Tax Guide, at page 696.
Chapter 5
1. See Joint Public Hearing New York State Assembly on Proposed Amendments to the State Accountancy Statute, November 16, 1999.
2. New York in 1870, Cincinnati in 1872, Cleveland in 1873, St. Louis and Chicago in 1874, Memphis and Nashville in 1875, and Boston in 1876.
3. Dates of the initial organization of state bars:
|
1873 |
New Hampshire |
|
1874 |
Iowa |
|
District of Columbia |
|
|
1875 |
Connecticut |
|
1876 |
New York |
|
1877 |
Illinois |
|
1878 |
Alabama |
|
Nebraska |
|
|
New Jersey |
|
|
Vermont |
|
|
Wisconsin |
|
|
1880 |
Missouri |
|
Ohio |
4. Some 75 lawyers from 21 states and the District of Columbia came together for the organizational meeting of the ABA in the upstate New York resort of Saratoga, in response to a call of the Connecticut Bar Association based on a resolution adopted a year earlier by the American Social Science Association that had commended the future of the legal profession to the emerging law schools of the country. See Goetsch, Essays on Simeon E. Baldwin, 24-30, cited by R.B. Stevens, Law School: Legal Education in America from the 1850s to the 1980s (1983) at 34; G. Carson, A Good Day at Saratoga (1978).
5. See R.B. Stevens, Law School: Legal Education in America from the 1850s to the 1980s (1983), at 51 to 72.
7. W.A. Seavey, The Association of American Law Schools in Retrospect, 3 Journal of Legal Education 153 (1950) at 157-58: the requirements for Association membership: (1) accept students for admission only who had a high school or equivalent education; (2) require 10 hours-a-week of instruction for at least two years; (3) only graduate students after an examination; and(4) provide students with access to a law library having reports of the state in which located and of the U.S. Supreme Court.
9. See R.B. Stevens, supra at 115 and Seavey, supra at 161-62; cf. A.Z. Reed, Training for the Public Profession of Law (1921).
10. One aroused critic declared:
"I protest in the name of 111,000,000 people against so reactionary, so narrow, so unfair a position as says: ‘It matters not what your competency in every particular; if you did not acquire it in one of about a half dozen great endowed universities, then, not prima facie, but conclusively, you are unfit to represent your fellow citizens or to advise them upon their legal rights.’" 4 American Law School Review 682 (1921), cited by R.B. Stevens, supra note 5, at 125 (fn. 18).
11. R.B. Stevens, supra note 5, at 114.
12. If the applicant for admission were a college graduate, it was common to require a year less of "law" training. See, for example, the first New York State Admissions Standards prescribed in 1895. J. Newton Fiero, Albany Law School Semi-Centennial Remarks (1901).
13. See ABA Comprehensive Guide to Bar Admissions Requirements, 1999 at 10-12; in Alaska, a clerkship program is provided for by statute, but has not been implanted by the University of Alaska in recent years.
14. R. MacCrate "The Lost Lawyer" Regained: The Abiding Values of the Legal Profession, 100 Dickinson L. Rev. 587 (1996).
Chapter 6
1. See supra, Chapter 1 "The Salient Changes in the Demography."
2. Supra, Chapter 3 "The Differentiation in Practice Settings;" see also, Report of the Task Force on Law Schools and the Profession: Narrowing the Gap, Legal Education and Professional Development-An Educational Continuum 29-102 (1992).
3. Michael I. Powell, From Patrician to Professional Elite: The Transformation of the New York City Bar Association (1988); John P. Heinz & Edward O. Laumann, Chicago Lawyers: The Social Structure of the Bar, 234-41 (1982); Richard L. Abel, American Lawyers 45, 90, 100, 290 (1989).
4. Charles Wolfram, Modern Legal Ethics § 2.2 (1986).
5. See, e.g., John Leubsdorf, Man In His Original Dignity: Legal Ethics in France (2000); Kenneth F. Ledford, From General Estate to Special Interest: German Lawyers 1878-1933 (1996).
6. On barristers, see, e.g., J.H. Baker, Judicial Review of the Judges as Visitors to the Inns of Court, 1992 Public L. 411. Solicitors, although subject to court discipline, have now owed much of their regulation to judges, who of course were never solicitors themselves. Brian Abel-Smith & Robert Stevens, Lawyers and the Courts: A Sociological Study of the English Legal System, 1750-1965 (1967).
7. United Mine Workers v. Illinois State Bar Ass’n, 389 U.S. 217 (1967); Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975); Bates v. State Bar of Arizona, 433 U.S. 350 (1977).
8. Jay Feinman, Economic Negligence, ch. 9 (1994).
9. Thomas D. Morgan & Ronald D. Rotunda, 1999 Selected Standards on Professional Responsibility 133-42 (1999).
10. Commission on Evaluation of Disciplinary Enforcement, Law Regulation for a New Century 89-129 (1992).
11. Compare Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court, 949 P.2d 1 (Calif. 1998)(New York firm’s initiation of California arbitration unauthorized practice) with Calif. Code of Civ. Pro. § 1282.4 (responding to Birbrower by authorizing similar behavior); see also Spanos v. Skouras Theatres Corp., 364 F.2d 161 (2d Cir.), cert. den., 385 U.S. 987 (1966)(considering interstate federal law); Restatement of the Law Governing Lawyers § 3.
12. E.g., Attorney Grievance Comm’n v. Hopp, 623 A.2d 193 (Md. 1993)(disciplining Maryland lawyer for California misconduct); Paramount Corp. v. QVC Network, 637 A.2d 34 (Del. 1994) (discussing Delaware discipline for Delaware misconduct by Texas lawyer); see ABA Model Rules of Professional Conduct, rule 8.5; Symposium, Ethics and the Multijurisdictional Practice of Law, 36 S. Tex. L. Rev. 657 (1995).
13. E.g., In re American Airlines, Inc., 972 F.2d 605 (5th Cir. 1992) (ethical common law governs disqualification of lawyers in federal court action); In the Matter of John H. Gutfreund, Securities Exchange Act of 1934, Release No. 34-31554 (SEC 1992)(discussing duties of brokerage firm lawyer under federal law).
14. E.g., Virginia Supreme Court v. Friedman, 487 U.S. 59 (1988) (striking down residence requirement for admission, but accepting that state may impose other requirements); 28 U.S.C. § 530B (federal government lawyers subject to state ethical standards).
15. Charles Wolfram, note 4 supra, at 40-41, 912-913.
16. For perhaps the most extensive set of statutes, see Calif. Business & Professions Code §§ 6067-6228. England and France, where circumstances are different, have recently passed far more comprehensive legislation. Courts and Legal Services Act 1990 (c. 41) (Eng.); Access to Justice Act 1999 (c. 22) (Eng.); Law no. 71-1130 of Dec. 31, 1971, amended by Law no. 90-1259 of Dec. 31, 1990 (France).
17. Charles Wolfram, note 4 supra, at 756-57, 751-53.
18. E.g., Marc Galanter, Predators and Parasites: Lawyer-Bashing and Civil Justice, 28 Ga. L. Rev. 663, 667-68 (1994) (discussing HALT-Americans for Legal Reform, an "antilawyer" organization); Symposium on the American Law Institute: Process, Partisanship, and the Restatements of Law, 26 Hofstra L. Rev. 567 (1998) (discussing lobbying and the Restatement of the Law Governing Lawyers).
19. See David B. Wilkins, Who Should Regulate Lawyers?, 105 Harv. L. Rev. 799 (1992).
20. David Hoffman, Professional Deportment, in A Course of Legal Study 324-34 (1817); George Sharswood, An Essay on Professional Ethics (1854); see M.H. Hoeflich, Legal Ethics in the Nineteenth Century: The "Other Tradition," 47 Kan. L. Rev. 793 (1999).
21. Geoffrey C. Hazard, Jr., The Future of Legal Ethics, 100 Yale L.J. 1239 (1991).
22. John Leubsdorf, Legal Malpractice and Professional Responsibility, 48 Rutgers L. Rev. 101 (1995).
23. See Richard L. Abel, note 3 supra, at 112-41(1989).
24. See Model Rules 1.11, 1.12, 2.1, 2.2, 2.3, 3.8, 3.9.
25. Canons 33; Model Rules 5.1-4.
26. Susan D. Carle, Lawyers’ Duty to Do Justice: A New Look at the History of the 1908 Canons, 24 L. & Social Inquiry 1 (1999); Geoffrey C. Hazard, Jr., note 21 supra; Ted Schneyer, Professionalism as Bar Politics: The Making of the Model Rules of Professional Conduct, 14 L. & Social Inquiry 677 (1989); Proposed American Lawyer’s Code of Conduct (rev. draft 1982).
27. E.g.,The Florida Bar Re: Amendments to Rules Regulating the Florida Bar, 624 So. 2d 720 (Fl. 1993); Steven C. Krane, Proposed Amendments to the Code of Professional Responsibility: A Continuing Process of Change, 69 N.Y. St. B.J., May/June 1997, at 42; Massachusetts is Latest State to Adopt ABA Model Rules, 13 ABA/BNA Lawyers’ Manual on Professional Conduct 181 (1997).
28. E.g., N.Y. Code of Prof. Responsibility, DR 1-102(A)(6), 5-111; Colo. Rules of Prof. Conduct, rule 1.2.
29. 22 N.Y.C.R.R. §§ 521.1-.8 (permitting foreign lawyers to register as legal consultants).
30. N.Y. Code of Prof. Responsibility, DR 1-104; N.J. Rules Prof. Conduct, rule 5.1(a).
31. Report of the Task Force on Law Schools and the Profession: Narrowing the Gap, Legal Education and Professional Development-An Educational Continuum 111-14 (1992).
32. Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s (1983).
33. Michael J. Kelly, Legal Ethics and Legal Education 7-21 (1980); LeRoy L. Lamborn, Legal Ethics and Professional Responsibility (1973); authorities cited note 15, supra.
34. Clinical Education for the Law Student (1973).
35. ABA Standards for the Approval of Law Schools, standard 304(a)(iv) (as amended August 1974).
36. See Deborah L. Rhode, Professional Responsibility: Ethics by the Pervasive Method (2d ed. 1998).
37. Symposium, Teaching Legal Ethics, 58 Law & Contemp. Probs., Nos. 3 & 4 (1995); see Report of the Professionalism Committee, Teaching and Learning Professionalism (1996); Teaching and Learning Professionalism: Symposium Proceedings (1997).
38. Compare Geoffrey C. Hazard, Jr., Susan Koniak & Roger Cramton, The Law and Ethics of Lawyering (3d ed. 1999); John F. Sutton, Jr. & John S. Dzienkowski, Cases and Materials on the Professional Responsibilities of Lawyers (1989) with Thomas L. Shaffer, American Legal Ethics: Text, Readings, and Discussion Topics (1985); Daniel R. Coquillette, Lawyers and Fundamental Moral Responsibility (1995).
39. See John Leubsdorf, Three Models of Professional Reform, 67 Cornell L. Rev. 1021 (1982).
40. Andrew W. Boon & Jennifer Levin, The Ethics and Conduct of Lawyers in England and Wales 152-72 (1999); Jean-Claude Masclet, et al., Legal Education and Training in Europe: France, 2 Int’l J. Leg. Prof. 7 (1995).
41. Charles Wolfram, note 4 supra, at 198-202, 858-64.
42. ABA/BNA Lawyers’ Manual on Professional Conduct 21:601-02; Comprehensive Guide to Bar Admission Requirements 20 (1999).
43. Robert M. Jarvis, An Anecdotal History of the Bar Exam, 9 Georgetown K. Legal Ethics 359, 384-85 (1996); Leslie C. Levin, The MPRE Reconsidered, 86 Ky. L.J. 395, 409-11 (1997).
44. Report of the Task Force on Law Schools and the Profession: Narrowing the Gap, Legal Education and Professional Development-An Educational Continuum 273-304 (1992).
45. Paul A. Wolkin, ALI-ABA...XL! (1988); CLE and the Lawyer’s Responsibilities in an Evolving Profession (1998).
46. Sheran & Harmon, Minnesota Plan: Mandatory Continuing Legal Education for Lawyers and Judges as a Condition for the Maintaining of Professional Licensing, 44 Fordham L. Rev. 1081 (1976).
47. 22 N.Y.C.R.R. pt. 1500 (1999); ABA/BNA Lawyers’ Manual on Professional Conduct 21:3004-13.
48. Charles W. Wolfram, note 4 supra, at 80; American Bar Association, Survey on Lawyer Discipline Systems, 1995, at 5, 12 (1997).
49. E.g., In re Forrest, 730 A.2d 340 (N.J. 1999)(failure to disclose client’s death); In re Yarborough, 1999 S.C. Lexis 94 (S.C. 1999)(sexual overtures to client); note 50, infra.
50. Richard Abel, note 3 supra, at 143-50 (asserting little subsequent improvement); Mark & Cathcart, Discipline Within the Legal Profession: Is It Self-Regulation?, 1974 U. Ill. L. Forum 193; Hedvah L. Shuchman, Self-Regulation in the Professions: Accounting, Law, Medicine 41-50, 139-60, 229-34 (1981).
51. ABA Special Committee on Evaluation of Disciplinary Enforcement, Problems and Recommendations (1970).
52. American Bar Association, Survey on Lawyer Discipline Systems, 1995 (1997).
53. ABA Model Rules for Lawyer Disciplinary Enforcement (1989); ABA Standards for Imposing Lawyer Sanctions (1986); Report of the Commission on Evaluation of Disciplinary Enforcement, Lawyer Regulation for a New Century (1992).
55. E.g., In re Himmel, 533 N.E.2d 790 (Ill. 1988) (discipline for failing to report another lawyer’s misconduct); In re Fordham, 668 N.E.2d 816 (Mass. 1996), cert. den., 519 U.S. 1149 (1997) (discipline of hourly fee lawyer for devoting too many hours to criminal defense); Lisa G. Lerman, Blue-Chip Bilking: Regulation of Billing and Expense Fraud by Lawyers, 12 Georgetown J. Legal Ethics 205 (1999) (billing fraud by large firm lawyers).
56. E.g., In re Primus, 436 U.S. 412 (1978) (lawyer’s First Amendment right to solicit for unpaid public interest case); In re Ryder, 263 F. Supp. 360 (E.D. Va.), aff’d, 381 F.2d 713 (4th Cir. 1967) (lawyer may not place criminal suspect’s gun and stolen property in safe deposit box).
57. E.g., Kevin H. Michels, New Jersey Attorney Ethics 934-44 (1998).
58. E.g., ABA/BNA Lawyers’ Manual on Professional Conduct, Ethics Opinions 1991-1995; Charles Wolfram, note 4 supra, at 65-67; Ted Finman & Theodore Schneyer, The Role of Bar Association Ethics Opinions in Regulating Lawyer Conduct: A Critique of the Work of the ABA Committee on Ethics and Professional Responsibility, 29 U.C.L.A. L. Rev. 67 (1981).
59. E.g., Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975) (striking down minimum fee scales under Sherman Act); Chicago Council of Lawyers v. Bauer, 522 F.2d 242 (7th Cir. 1975), cert. denied, 427 U.S. 912 (1976)(holding violative of First Amendment rule limiting lawyers’ comments on pending cases).
60. Bruce A. Green, The Criminal Regulation of Lawyers, 67 Fordham L. Rev. 327 (1998).
61. Manuel R. Ramos, Legal Malpractice: The Profession’s Dirty Little Secret, 47 Vand. L. Rev. 1657 (1994); ABA Standing Committee on Lawyers’ Professional Liability, Characteristics of Legal Malpractice (1989).
62. E.g., Re v. Kornstein Veisz & Wexler, 958 F. Supp. 907 (S.D.N.Y. 1997) (conflict of interest; liability for breach of fiduciary duty); 2 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 15.18 (4th ed. 1996).
64. E.g., Doucette v. Kwiat, 467 N.E.2d 1374 (Mass. 1984) (liability for overcharging); Lucas v. Nesbitt, 653 S.W.2d 883 (Tex. Civ. App. 1983)(liability for misrepresentation and failure to file proper pleading).
65. Restatement of the Law Governing Lawyers § 52; John Leubsdorf, note 22 supra.
66. E.g., A.B.A. Standing Committee on Lawyers’ Professional Liability, The Lawyer’s Desk Guide to Legal Malpractice (1992).
67. Restatement of the Law Governing Lawyers §§ 34-43. But see Stephen Gillers, Caveat Client: How the Proposed Final Draft of the Restatement of the Law Governing Lawyers Fails to Protect Unsophisticated Consumers in Fee Agreements with Lawyers, 10 Georgetown J. Legal Ethics 581 (1997).
68. Restatement of the Law Governing Lawyers § 37.
69. Id. § 42; Alan S. Rau, Resolving Disputes Over Attorneys’ Fees: The Role of ADR, 46 S.M.U.L. Rev. 2005 (1993).
70. E.g., National Savings Bank v. Ward, 100 U.S. 195 (1879).
71. Restatement of the Law Governing Lawyers § 51.
72. E.g., Heintz v. Jenkins, 514 U.S. 291 (1995) (Fair Debt Collection Practices Act); Rubin v. Schottenstein, Zox & Dunn, 143 F.3d 263 (6th Cir. 1998) (securities acts liability for misrepresentation); Board of Educ. v. Farmingdale Classroom Teachers Ass’n, 343 N.E.2d 278 (N.Y. 1975) (abuse of process).
73. Symposium, In the Matter of Kaye, Scholer, Fierman, Hays & Handler, 66 S. Cal. L. Rev. 985 (1993); The Attorney-Client Relationship After Kaye, Scholer (P.L.I. 1992).
74. E.g., T.C. Theatre Corp. v. Warner Brothers Pictures, Inc., 113 F. Supp. 265 (S.D.N.Y. 1953) (lawyer may not sue former client in matter substantially related to matters in which lawyer represented client).
75. E.g., Niesig v. Team I, 558 N.E.2d 1030 (1990) (application of rule to employees of corporate client).
76. E.g., Upjohn Co. v. United States, 449 U.S. 383 (1991) (communications by employees of corporate client).
77. E.g., 28 U.S.C. § 1927; Fed. R. Civ. P. 11, 37.
78. See David B. Wilkins, note 19 supra.
79. Restatement of the Law Governing Lawyers (Proposed Final Drafts No. 1 (1996) and 2 (1998); Tentative Draft No. 8 (1997); ALI Completes Restatement on Lawyers, Gives Final Approval to All Sections, 14 ABA/BNA Lawyers’ Manual on Professional Conduct 211 (1998).
80. See the Commission’s proposals at http://www.abanet.org/cpr/e2k/draftrules.html.
81. Richard H. Rovere, Howe & Hummel (1947) (describing turn-of-the-century New York firm known for blackmail and other misbehavior).
82. Robert Stevens, note 32 supra.
83. See 2 Robert T. Swaine, The Cravath Firm and Its Predecessors 1819-1948, at 1-8, 124-32 (1948); Theodore Voorhees, On Training Associates (1989).
84. E.g., Mass. Rules of Prof. Conduct, rule 1.6(c) (providing for confidentiality for lawyer assistance programs); Linda McDonald, Legal Education and the Practicing Bar: A Partnership of Reality, in MacCrate Report-Building the Educational Continuum (1993) (New Mexico mentor system).
85. Report of the Professionalism Committee, Teaching and Learning Professionalism 29, 33 (1996); Susan Saab Fortney, Am I My Partner’s Keeper? Peer Review in Law Firms, 66 U. Colo. L. Rev. 329 (1995).
86. E.g., Robert O’Malley, Preventing Legal Malpractice in Large Law Firms, 20 U. Tol. L. Rev. 325 (1989); John A. Edginton, Managing Lawyers’ Risks at the Millennium, 73 Tul. L. Rev. 1987 (1999).
87. E.g., The Law Firm and the Public Good (R.A. Katzmann ed. 1995).
88. E.g., Michael J. Powell, note 3 supra; Terence C. Halliday, Beyond Monopoly: Lawyers, State Crises, and Professional Empowerment 145-283 (1987); see generally the N.Y. State Bar Journal.
89. Lathrop v. Donohue, 367 U.S. 820 (1961) (upholding compulsory membership); Terry Radtke, The Last Stage In Reprofessionalizing the Bar: The Wisconsin Bar Integration Movement, 1934-1956, 81 Marq. L. Rev. 1001 (1998); Ted Schneyer, The Incoherence of the Unified Bar Concept, 1983 Am. Bar. Found. Res. J. 1.
90. Keller v. State Bar of California, 496 U.S. 1 (1990) (entitling dissenters to refund of part of integrated bar dues used for certain political activities); In the Matter of the State Bar of Wisconsin, 485 N.W.2d 225 (Wis. 1992) (discussing options for organizing bar activities); David Luban, The Disengagement of the Legal Profession: Keller v. State Bar of California, 1990 Sup. Ct. Rev. 163; Mike McKee, And Then There Were None, The Recorder, May 11, 1999, at 1 (describing struggle to restrict California State Bar).
91. ABA Model Rules of Professional Conduct, rules 5.1, 5.3.
92. Authorities cited note 30 supra; Ted Schneyer, Professional Discipline for Law Firms, 77 Cornell L. Rev. 1 (1999).
93. Restatement of the Law Governing Lawyers § 58.
94. Wieder v. Skala, 609 N.E.2d 105 (N.Y. 1992) (law firm associate); General Dynamics v. Superior Court, 876 P.2d 487 (Cal. 1994)(in-house counsel). But see Bohatch v. Butler & Binion, 977 S.W.2d 543 (Tex. 1998).
95. See Jerry Van Hoy, Franchise Law Firms and the Transformation of Personal Legal Services (1997) (describing pressure to mislead clients).
96. Douglas E. Rosenthal, Lawyer and Client: Who’s in Charge? (1974).
97. Restatement of the Law Governing Lawyers §§ 21-23.
98. Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975) (forbidding minimum price scale); see National Soc’y of Professional Engineers v. United States, 435 U.S. 679 (1978) (invalidating professional rule against price bidding).
99. E.g., Bates v. State Bar of Arizona, 433 U.S. 350 (1977) (price advertising); Shapero v. Kentucky Bar Assoc., 486 U.S. 466 (1988) (targeted mail); Peel v. Attorney Registration and Disciplinary Comm’n, 496 U.S. 91 (1990) (credentials advertising).
Chapter 7
1. See generally Gary John Previts & Barbara Dubis Merino, A History of Accounting in America (John Wiley & Sons, Inc., 1979), John L. Carey, The Rise of the Accounting Profession: From Technician to Professional 1896-1936 (1969).
2. See Carey, supra; Alistair M. Preston, et al., Changes in the Code of Ethics of the U.S. Accounting Profession, 1917 and 1988: The Continual Quest for Legitimation, 20 Accounting, Organization, and Society 507 (1995).
3. See, e.g., In re Bercu, 273 App. Div. 524, 78 N.Y.S.2d 209 (1948), aff’d, 299 N.Y.728, 87 N.E.2d 451 (1949); Gardner v. Conway, 234 Minn. 468, 48 N.W.2d 788 (1951); Agran v. Shapiro, 127 Cal. App. 2d 807, 273 P.2d 619 (Super. Ct. 1954). The continued vitality of these cases is questionable in view of the Agency Practice Act, 5 U.S.C. §500(c), which allows CPAs to practice before the Internal Revenue Service.
4. Erwin N. Griswold, A Further Look: Lawyers and Accountants, 41 ABAJ 1113 (Dec. 1955).
5. See Ahmed Belkaoui, The Coming Crisis in Accounting (1989).
6. See generally Colin Boyd, The Transformation of the Accounting Profession: The History Behind the Big 5 Accounting Firms Diversifying into Law, A Report Prepared for the Canadian Bar Association International Practice of Law Committee on Multi-Disciplinary Practices and the Legal Profession, May 13, 1999, http://www.commerce.usask.ca/faculty/boyd/mpacc801/FinalCBAReport.htm. See also Michael Trebilcock, Lilla Csorgo, Charles River Associates, Multidisciplinary Practices: A Consumer Welfare Perspective, submitted to ABA Commission on Multidisciplinary Practice August 4, 1999, http://www. abanet.org/cpr/canada.html.
7. Wallace E. Olson, The Accounting Profession, Years of Trial: 1969-1980 (1982); Subcommittee on Reporting, Accounting and Management of the Senate Committee on Government Operations, The Accounting Establishment: A Staff Study (1976); Abraham J. Briloff, More Debits than Credits: The Burnt Investor’s Guide to Financial Statements (1976).
8. Bates v. Arizona State Bar, 433 U.S. 350 (1977) invalidated the rule against advertising by lawyers; the holding is clearly applicable to advertising by CPAs as well. See also Ibanez v. Florida Department of Business Regulation, 512 U.S. 136 (1994), confirming the right of an individual licensed as a lawyer, a CPA and a certified financial planner to list all credentials in the telephone yellow pages.
9. Edenfield v. Fane, 507 U.S. 761 (1993).
10. Ohralik v. Ohio State Bar, 436 U.S. 447 (1978); Falanga v. Georgia State Bar, 150 F.3d 1333 (11th Cir. 1998), cert. denied, 119 S. Ct. 1496 (1999).
11. Bowman’s Accounting Report, Vol. 13, No. 8, August, 1999 p. 4.
12. Jeffrey E. Garten in "Ethics be Damned, Let’s Merge" at page 26 of Business Week for August 30, 1999.
13. Jens Drolshammer, The Future Legal Structure of International Law Firms, Special Edition European Journal of Law Reform (2000), at 15-16.
14. Public Accounting Report, October 31, 1999, based on the records of the Nebraska Board of Public Accountancy as of May 1, 1999.
15. See Andersen Consulting Business Unit Member Firms v. Andersen Worldwide, 98 Civ. 1030 (U.S. SDNY 1998).
16. Andersen Worldwide, Hoover’s Online, The Business Network, April 5, 2000.
18. Id.. Drolshammer, fn. 13, supra, at 16.
20. Who’s News, Wall Street Journal, February 25, 2000, at 9.
21. Deloitte Touche Tohmatsu, Hoover’s Online, The Business Network, April 5, 2000.
22. Id.. Drolshammer, fn. 13, supra, 17-18.
23. Id.. Public Accounting Report fn. 14, supra.
24. Ernst & Young International, Hoover’s Online, The Business Network, April 5, 2000.
25. Ernst & Young May Sell Unit to Cap Gemini, Wall Street Journal, December 7, 1999, at A3.
26. Id.. Drolshammer, fn. 11, supra, at 18.
27. Id.. Drolshammer, fn. 13, supra at 16-17.
28. John T. Lanning: One-Stop-Shopping For Global Tax Advice, The Metropolitan Corporate Counsel, November 1999, at 32.
29. Id.. Drolshammer, fn. 13, supra at 17.
30. Id.. Public Accounting Report, fn. 14, supra.
31. U.S. Industry and Trade Outlook 1998: Professional Business Services, Table 49-1, at 49-3.
32. KPMG International, Hoover’s Online, The Business Network, April 5, 2000.
33. Id.. Lanning, fn. 28, supra, at 4.
34. Id.. KPMG International, fn. 32, supra.
35. Id.. Public Accounting Report, fn. 14, supra.
36. PricewaterhouseCoopers, Hoover’s Online, The Business Network, April 5, 2000.
37. PwC reorganizes global network of legal firms, Jean Eaglesham, Legal Correspondent, London Financial Times, London edition, October 11, 1999, at 4 (National News).
39. See Subcommittee, A Staff Study, fn. 7, supra.
40. Id.. Colin Boyd, fn. 6, supra, at 29.
41. Id; a Professor Boyd, in a similar vein, suggests that the phrase "one-stop shopping" erroneously implies passive selling, in contrast to the active marketing by the Big Five that lies behind the rapid rise in their sales during the 1990s. Id.. Boyd, fn. 6, supra, at 29-30. For a detailed comparison between lawyer rules and those applicable to accountants performing attest and nonattest functions, see Harold Levinson, Regulation of Multidisciplinary Practice, ch., 2 (forthcoming).
42. See Rules That Only an Accountant Could Fail to Understand, New York Times, January 8, 2000, at C1; Accounting firms admit compliance faults, Financial Times, January 24, 2000, at 2; Report by SEC Says Pricewaterhouse Violated Rules on Conflicts of Interest, January 7, 2000, at A3.
43. See U.S. Industry and Trades Outlook 1988: Professional Business Services, at 49-1.
44. Id. at 49.3 and Tables 49-2 and 49-3.
45. Id. at 49.4 and Tables 49-4 and 49-5.
46. Id. at 49.5 and Tables 49-7 and 49-8.
47. For an analysis, including the AICPA rules, see Harold Levinson, fn. 41, supra.
48. The current edition of the UAA is the 3d edition (1997), as revised November 1999 http//www.aicpa.org/states/uaaentry.htm.
49. See generally Background on the AICPA/NASBA Uniform Accountancy Act-Third Edition-Revised (UAA) What Does It Mean? http//www.aicpa.org/states/uaa/briefs/newuaa.htm.
50. But see special regulation of the compilation function, infra.
51. Hedvah L. Shuchman, Self-Regulation in the Professions: Accounting, Law, Medicine (1981); Briloff, fn. 7, supra, at 350-60.
52. But see special regulation of the compilation function, infra.
53. In summary: A CPA who prepares and issues compilations while working for a nonCPA firm must sign the compilation report as an individual. UAA §14(1); a CPA and a firm that prepare and issue compilations must undergo peer review every three years. UAA §§6(j), 7(h); a CPA who supervises and signs compilation reports must meet special competency requirements as defined in professional standards. UAA §7(h), 14(1); a CPA and a firm that prepare and issue compilation reports may not accept commissions or contingent fees for products or services they provide for compilation clients. UAA §14(n)(o).
54. On the concept of "affiliated entities," see discussion of alternative practice structures, infra.
55. U.S. General Accounting Office, The Accounting Profession — Major Issues (1996); Gary John Previts, The Scope of CPA Services: A Study in the Development of the Concept of Independence and the Profession’s Role in Society (1985); Paul R. Brown, et al., Administrative and Judicial Approaches to Auditor Independence, 30 Seton Hall L. Rev. 443 (2000).
57. The DM sets forth the above SEC position in an excerpt from a Letter from Harvey J. Goldschmid, Chief Counsel, SEC. Lynn E. Turner, Chief Accountant, SEC. and Richard H. Walker, Director of Enforcement, SEC to Philip S. Anderson, Esq., President, ABA, July 12, 1999, quoting from Matter of Charles E. Falk, Exch. Act Rel. No. 41426, AAE Rel. No. 1136 (SEC, May 19, 1999).
58. See fn. 55, supra, Paul R. Brown, et al.
59. See Chapter 9, Germany, infra.
61. Letters dated September 30, 1999 from Robert MacCrate to: James Wadia, Arthur Andersen; James E. Copeland, Deloitte & Touche; Philip A. Laskaway, Ernst & Young; Stephan G. Butler, KPMG; and James J. Schiro, PricewaterhouseCoopers, LLP.
62. Voicemail recording at 212-768-6747, October 27, 1999. On the other hand, various representatives of the Big Five firms cooperated in the preparation of Chapter 9, and references to this effect are found in that chapter.
63. Id.. Lanning, fn. 28, supra, at 42, 47.
67. See Legal Times, February 3, 1997.
68. Interview with Irene Dorschak, April 3, 2000.
69. Lawyer Statistical Report for 1995.
70. The National Association for Law Placement ("NALP"), in its surveys of graduates of the law school classes of 1997 and 1998, divided graduates taking positions in accounting firms into two categories: "accounting legal" (for which a law degree is required) and "accounting - other" (for which a law degree is not required). The surveys indicate that approximately 1,000 JD graduates nationwide found jobs with accounting firms split between the two categories.
71. Id.. Lanning, fn. 28, supra.
75. Journal of Accountancy, September 1999, at 15. (The Journal is published by the American Institute of Certified Public Accountants, Inc.)
76. "Taking a Look Inside the Big 5" by Anna Snider, New York Law Journal, September 7, 1999; "Rivals Call Law Firms to Account" by David Seigal The Washington Post, November 12, 1998, at F-1; Multi-Disciplinary Professional Practices: A Consumer Welfare Perspective, Michael Trebilcock and Lilla Csorgo, Charles River Associates, Toronto, Ontario. 1999.
77. Bowmans, Accounting Report, Vol. 13, No. 11, November 1999, at 8.
79. Letter dated March 7, 2000 of Louis F. Duffy to Robert MacCrate.
80. "Inside the Ernst & Young Deal," Siobhan Roth, The Recorder/Cal Law, November 10, 1999 on NETWORK.com.
Chapter 8
1. See P.M. Hamlin, Legal Education in Colonial New York, (NYU 1939), Appendix VII.
2. A.H. Dean, William Nelson Cromwell (1854-1948), NY (1957) at 59-69.
3. Nat. L. Jour. (December 13, 1999) at C5-C20.
4. Carole Silver, Globalization and the U.S. Market in Legal Services—Shifting Identities (forthcoming publication in Georgetown Journal of International Business).
7. Y. Dezalay and B.G. Gartle, Dealing in Virtue, International Commercial Arbitration and the Construction of a Transnational Legal Order, (Univ. of Chicago 1996), at 179.
8. These rules in North America, Europe, East Asia and Australia are set forth and discussed in Cone, International Trade in Legal Services (Little, Brown 1996).
9. See the text at Chapter 9, note 21 below. These U.S. states have continued to license foreign lawyers as legal consultants, although France has ceased to license foreign lawyers as conseils juridiques.
10. The New York legal-consultant rules are Part 521 of the Rules of the N.Y. Court of Appeals.
11. These specific commitments are annexed to the GATS, country-by-country.
12. Under Annex 1210.5, Section B of the NAFTA, Canadian, Mexican and U.S. professional bodies of lawyers have proposed a model rule for adoption by local regulatory authorities in each country, entitled "Foreign Legal Consultants and Related Aspects of the Cross-Border Delivery of Legal Services." This model rule is just that, and it may be adopted, modified, rejected or ignored by local regulatory authorities.
Chapter 9
1. See generally, American Bar Association Commission on Multidisciplinary Practice (hereinafter, "ABA Commission on MDP"), Report to the House of Delegates, Aug. 1999, at C7-C9.
2. See, e.g., Ader, Synopsis of notes on the question of the multidisciplinary partnership in France today, at 4, Paris, Aug. 4, 1999.
3. See "The Paris Laboratory," Commercial Lawyer, Feb. 1996, at 16.
4. The 18 are the 15 member states of the European Union—Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, Netherlands, Portugal, Spain, Sweden, United Kingdom—plus Iceland, Liechtenstein, Norway. CCBE is the acronym for Commission Consultative des Barreaux Européens, the former French name of the Council.
5. See, e.g., the CCBE Declaration on Multidisciplinary Partnerships adopted in Brussels on Nov. 29, 1996.
6. By way of footnote, the CCBE Position on MDP stated that it was not addressing the subject of in-house counsel, because in-house lawyers have a position that "is distinct from that of lawyers serving the public to such an extent, that the two cannot be considered within the same context."
7. This possibility was referred to, e.g., in the course of the litigation in The Netherlands (discussed below), and in the article in the Law Society Gazette referred to in the next footnote.
8. See the Gazette of The Law Society, Nov. 17, 1999, at 1.
9. The paper was prepared by Directorate General III of the Commission (no. 9, 7/9,. Sept. 21, 1992). The relevant section is "6. Mixed Practices" (at 22-24).
10. In France, multidisciplinarité refers to the practice by a firm of several disciplines; interprofessionalité refers to organized relationships between several professionals practicing in different disciplines; and pluridisciplinarité refers to multidisciplinary practice in general.
11. Collection des rapports officiels, La Documentation Française, ISBN 2-11-004360-1, Paris, 1999. It is summarized below at the end of this section on France. The legal profession in France is fragmented, which is why the French and the Nallet Report use "professions" in the plural.
12. These associated French law firms are Archibald Andersen; H.S.D.[hommes, stratégie, droit]-Ernst & Young; Deloitte & Touche Juridique et Fiscal; [Deloitte & Touche] Thomas & Associés; Fiduciaire Juridique et Fiscale de France-Fidal [KPMG] (hereinafter "Fidal"); Landwell & Associés (previously Coopers & Lybrand CLC Juridique et Fiscal and Price Waterhouse Juridique et Fiscal). For the term "associated law firms," see, e.g., "Accountants and lawyers," The Economist, March 6, 1999, at 68.
13. Contribution Intersyndicale à la mission parlementaire de Monsieur Henri Nallet: Guichet unique du droit, interprofessionalité règlementée: deux impératifs pour les clients et les justiciables (March 1999) (hereinafter "Contribution Intersyndicale"), at 29. See also the Nallet Report, at 30.
14. The Nallet Report, at 29-31, discusses the Big Five under the heading, "Les réseaux et le marché du droit: la France, un paradis pour les réseaux [MDPs and the legal market: France, a paradise for MDPs]?"
15. See generally, Contribution Intersyndicale, and Laurent Chambaz, Rapport à l’Assemblée Plénière du Conseil National des Barreaux, L’affiliation de cabinets d’avocats à des réseaux intégrés, non-exclusivement juridiques, August 1997 (hereinafter "Chambaz"), for discussions of the origin and the development of MDPs in France.
16. The avocats are officers of the court acting as attorneys and counselors; the avoués are officers before the courts of appeal; the huissiers de justice perform various functions including serving legal papers (like process servers), levying execution of court decisions, collecting minor debts; the notaires have jurisdiction over real estate transactions, wills, and various documentary matters.
17. A decree of November 30, 1956 authorized associations between avocats, but the Paris Bar’s Code of Professional Responsibility in 1961 limited to five the number of associated avocats in each structure. This limitation was finally abandoned later in the 1960s.
18. By 1971, only a few French firms had an international reputation (e.g., Gide Loyrette Nouel, Jeantet, Francis Lefebvre).
19. See Zimmerman in Contribution Intersyndicale, at 18-19. The vacuum was also filled in part by foreign law firms established in France, as well as by French legal and tax consultants with law degrees who were not members of a French Bar but were giving advice or preparing documents in matters related to business, commercial, corporate, and tax law.
20. The title is recognized by Law 71-1130 of December 31, 1971.
21. Several associations of conseils juridiques including the Association Nationale des Conseils Juridiques (ANCJ) were unified under regional commissions headed by a National Commission of Conseils Juridiques.
22. Contribution Intersyndicale, at 19-20.
23. See Cone, International Trade in Legal Services (Little, Brown 1996), §9.4.
24. Contribution Intersyndicale, at 29.
25. Rapport à Monsieur le Bâtonnier Philippe Lafarge de Monsieur Daniel Soulez Larivière, membre du Conseil de l’Ordre, sur la réforme des professions juridiques et judiciaires (June 1988) (hereinafter "Soulez Larivière").
26. Id., at 21 (where the report also criticized the Big Eight for using their financial strength to buy up firms of conseils juridiques in Paris and throughout France, and for allegedly boasting that they would buy up the avocats "building by building and room by room").
27. See Contribution Intersyndicale, at 24.
28. Association Nationale des Conseils Juridiques (ANCJ).
29. The legal name of Juri-Avenir is Association pour l’exercice en groupe de la nouvelle profession juridique et judiciaire. Although not exclusively composed of the Big Five, Juri-Avenir is viewed as having been sponsored by them to promote MDP in France.
30. Letter dated Sept. 1990. The letter claimed broad support from the professions of avocat and conseil juridique.
31. See note 42, infra, and accompanying text for a discussion of Article 67, paragraph 3.
32. See Soulez Larivière, §II-3 D a).
33. See the Nallet Report, at 30, and Contribution Intersyndicale, at 29. In 1997, the average annual increase in revenues for the legal practices of the Big Six (before the merger of Price Waterhouse and Coopers & Lybrand) was 21%. Nallet Report at. 31.
34. See Contribution Intersyndicale, at 31-32.
35. Fidal, Rapport de gestion du directoire, Accounting year ending Sept. 30, 1998 (hereinafter "Fidal 1998").
36. The profitability of Clifford Chance, France, was 9.66% in 1997. Contribution Intersyndicale, at 31.
38. See Contribution Intersyndicale, at 32. Fidal had almost the same debt/gross revenues ratio in 1997 (37.94%), which was the lowest among the Big Five legal practices. In comparison, the same ratio for Clifford Chance in France was 2.17% in 1997. Id.
40. Partners’ remuneration in the Big Five law firms is not published. The amount, if any, of remuneration contributed by the non-legal practices, and any differences in remuneration between the regular French partners of a Big Five law practice and those partners who are also members of international entities grouping various practices (like Andersen Worldwide in Switzerland) are likewise not published. Gérard Nicolaÿ of Landwell & Associés (PricewaterhouseCoopers) says that the law firm's partners receive 70% of their income after a one-year delay and invest in the law firm a total of 40% of their income in order to finance its development.
41. In 1998, Fidal had a total of 1,960 employees, and total operating expenses in respect of salaries of 604,030,000 FF. Fidal 1998. If it had paid its associates and other non-partner employees at the lowest market rates (180,000 FF a year for a first-year associate was the base salary recommended by the relevant syndicate in Paris; the legal minimum wage in France in 1998 was approximately 90,000 FF a year), Fidal would have paid its partners on average a yearly salary of less than 1.2 million FF (approximately $200,000). These figures assume full-year employment. They may understate non-partner remuneration and overstate partner remuneration.
42. Chambaz, at 12-15, gives the following legislative history. Different versions of the text appeared during the parliamentary debates. There were several attempts by supporters of the Big Five to amend the wording of the text. The text ultimately adopted was in fact taken from an amendment submitted by a supporter of the Big Five, which were thus successful in imposing their views to a certain extent. Their wording not only gave them a five-year period of status quo, but also generated a debate on its interpretation on which the Big Five have been relying to prolong enforcement of the provision beyond the period of five years.
43. See Contribution Intersyndicale, at 25-26. Chambaz, at 11-13, quotes Dominique Saint-Pierre, in his report of June 1989, for the proposition that legal practices within MDPs would not be permitted to use the names of the MDPs; and quotes Michel Pezet, the Reporter of the Law Committee of the French National Assembly, as having stated that the purpose of Article 67 was to guarantee the independence of the avocat within an MDP. The syndicates referred to are the Association Française des Avocats Conseils d’Entreprises, Confédération Nationale des Avocats, Fédération Nationale des Unions des Jeunes Avocats, Union des Jeunes Avocats de Paris.
44. For this statement by Michel Pezet (preceding note) see Chambaz, at 13, Contribution Intersyndicale, at 25.
45. On Nov. 16, 1996 the National Bar Council issued the following statement: "Any firm affiliated with a national or international MDP that is not exclusively among legal practitioners must, from January 1, 1997 on: -stop making any reference whatsoever to such MDP, -modify its name so it no longer reproduces or includes in part or in whole the name of such MDP."
46. A decision by the Paris Bar Council dated May 7, 1996 indirectly required that the Big Five’s legal practices change their names but at the same time indicate their Big Five affiliations. This decision was a source of confusion that enabled the Big Five to maintain the status quo.
47. The decision to merge was reportedly taken at the global level by the accounting and counseling practices and imposed on the legal practices, which had to adapt to the situation created by a fait accompli.
48. The decision was made for all legal practices of PricewaterhouseCoopers in Europe and, according to Gérard Nicolaÿ, this rather short name was picked to sound Anglo-Saxon though allowing at the same time each country’s legal practice in the network to "customize" it easily. Accordingly it was Frenchified by adding the "& Associés" in France. For all practical purposes, the law firm PriceWaterhouse Juridique et Fiscal became Landwell & Partners and the law firm Coopers & Lybrand CLC Juridique et Fiscal became Landwell & Associés. Both are expected to become Landwell & Associés in the year 2000.
49. On the other hand, as regards Fidal, it should be noted that, in his report to the French Senate on Oct. 31, 1990, the Rapporteur de la Commission des Lois du Sénat, Luc Dejoie, gave a broad interpretation of the prohibition found in Article 67, paragraph 3: "This restriction means that past the five-year period, not only may the name of the firm no longer refer to the network to which it was affiliated, but also the name of the firm will have to be changed even if it did not mention the name of the network to which it was affiliated".
50. See Chambaz, at 15-16.
51. The relevant portion of the decision is found in Art. 16, Conseil National des Barreaux, Décision à caractère normatif no. 1999-001 (March 26-27, 1999), at 45-46.
52. Juri-Avenir, Répondre aux attentes du marché: un plan d’action qualité pour l’audit en Europe (hereinafter "1996 plan of action"). This document is found in Chambaz as Annex 12.
53. 1996 plan of action, at 12.
54. Recent data indicate that the legal practices of the Big Five in France generate 15% to 28% of total MDP revenues. See the Nallet Report, at 24.
55. 1996 plan of action, at 7, 43.
56. In this connection, see "Controverse sur l’entendue de l’exercice professionnel des avocats," Le Monde, Sept. 29, 1999, at 10.
57. PricewaterhouseCoopers is the only one under the jurisdiction of the Paris Bar.
59. See "Editorial" Bulletin du Bâtonnier (Paris) No. 12 March 26, 1996, No. 34 Oct. 15, 1996.
60. In France an attorney after being sworn in must work for a period of two years under the supervision of a more senior attorney, generally a partner in a law firm, in order to gain access to the Grand Tableau (the list of practicing attorneys who have completed their two years of stage).
61. Juri-Avenir, L’exercice de la profession d’Avocat en Réseau Pluridisciplinaire 1998 (hereinafter, "Juri-Avenir 1998"), at 12.
62. This decision was effectively ratified by the 1999 decision cited in note 51, supra.
63. The document was Juri-Avenir 1998 (note 61 supra).
64. Juri-Avenir 1998, at 5, calls MDPs the most efficient vehicle for the development of French law internationally, designed "to reinforce the status of French Business Law against the threat of Common Law hegemony." (The Big Five, of course, represent American and British traditions if not hegemony. They were founded in such places as London, Chicago, New York, and Cleveland.)
65. Juri-Avenir 1998, at 6. U.K. and U.S. firms are lumped together as "Anglo-Saxon."
69. Including that of Pierre Berger, President of Juri-Avenir.
70. The following enumeration and summary are not found as such in the Nallet Report.
71. Each of the following would be entitled to name one member of this new commission: the National Bar Council; the Conference of Bâtonniers; the Paris Bar; the National Society of Auditors; the Order of Accountants; the Stock Exchange Commission [the French Securities and Exchange Commission]; the Ministry of Finance; the Chancellery of the Ministry of Justice.
72. The Société Civile Professionnelle (SCP), the Société d’Exercice Libéral (SEL), the Association and the Société en Participation are among the most common.
73. Raymond Martin, La partie parallèle du rapport Nallet, JCP – La Semaine Juridique Edition Générale, No. 47, Nov. 24, 1999, at 2062.
74. See the Law Society Gazette, Nov. 17, 1999, at 1. For the views of a leading English barrister questioning the need or desirability of MDP from the point of view of the client