Caplin decries trend toward multidisciplinary law practices

By Nancy Hurrelbrinck

The practice of law is in danger of becoming more of a business than a profession, former U.Va.
law professor Mortimer Caplin warned a capacity crowd in the Law School’s Caplin Pavilion April 12. Caplin was at U.Va. to receive this year’s Thomas Jefferson Medal in Law.

“There’s a widening gap between what’s taught in law schools and how law is actually practiced,” said Caplin, who headed the IRS under President Kennedy and was a founding partner in Caplin & Drysdale, a prestigious tax law firm based in Washington, D.C.

To lead a good professional life, “lawyers need to wear two hats: as lawyers advocating for clients and as responsible citizens in a democratic society,” said Caplin, who spoke in one of several Law School facilities bearing his name. One of the Law School’s most loyal supporters, he also has funded a professorship, a public service scholarship, a public service award and a public service center.

“Only by contributing to public life can we reach Oliver Wendell Holmes’ ideal to ‘live greatly in the law.’”

He decried a trend toward multidisciplinary practice, pointing to “a sustained campaign” to allow lawyers and non-lawyers to join in partnership; for instance, a lawyer and an accountant might work together and share fees.

“The American Bar Association prohibits lawyers from sharing legal fees with non-lawyers, and these prohibitions are thought to protect the public and the profession,” he said.
Calling these prohibitions overly protectionist, the country’s five largest accounting firms have been making intense efforts to get these rules changed.

“They’re very powerful,” he said. “They maintain that lawyers aren’t practicing law; they’re consulting. Accounting firms want to have dual practices offering … one stop shopping, [selling] tax-shelter products.”

The ABA Ethics Commission voted three to one against allowing multidisciplinary practices last year, but the issue is far from dead, Caplin said. “The ABA only makes recommendations to individual state bars,” which are now analyzing the issue.

“It’s up to the next generation of lawyers to decide. There’s a lot of pressure to branch out, franchise, merge or affiliate. The largest firm in the world has 3,000 lawyers,” he said. “But as London’s Guardian put it, any intelligent fool can make things bigger. … It takes a bit of genius to go in the opposite direction.”

A large lobby of determined lawyers is arguing that “the profession is unique, that they don’t want it watered down. They’re seeking to uphold the rule of law and provide services to the community, to strengthen the judicial process and a spirit of public service,” he said.