As I approached my appearance I did not think I exaggerated when I viewed my speech as the most important I've ever delivered.

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Along the way to this presentation I also had nightmares. It was five years from now, the ABA was in steep decline and I had fallen into the annual meeting of the National Association of Multi-Disciplinary Professional Firms. Well-dressed individuals with badges scurried about, and the hail-fellow-well-met greetings in the corridors had a familiar ring, but after an exhaustive search no programs on pro bono were to be found, the crisis in death penalty representation went unnoticed, free speech only referred to the charge for attending the programs, not the cherished civil liberty, and no one was worrying about the independence of the judiciary despite President Quayle's recent call for the impeachment of seventeen federal judges who granted habeas petitions in the last twelve months. In their place I found programs featuring "Medicine: the Next Multi-disciplinary Frontier," "Leveraging Your Audit Services into Profits in Legal Services" and "Eliminating Confidentiality: Improving Society." Then I woke up and realized I had to persuade you here and now why you should reaffirm our values and ethical commitments to our clients.

The issue before you is the independence of our profession. Though this critical value finds its expression in Rule 5.4's prohibition on sharing fees with non lawyers, an interdiction that sounds strangely as if it is designed to protect our profession's turf, the rule in fact embodies the only prohibition that is likely to be effective in maintaining our professional independence. If for President Clinton it was "It's the economy, stupid," for our profession the watchword is "It's the money." Follow the money and you'll follow the power. Follow the power and you'll know whose in control. And as soon as the power rests with non-lawyers not trained in, not dedicated to, and not subject to discipline for our ethical principles, you will see the independence of the profession fall away.

"Oh no," shout the Philistines at our gates. "Even if lawyers are controlled by non-lawyers the results will be the same." Who should you believe? The hysterics like I who see the destruction of the profession? Or the wing-tipped shod accountants who call us alarmists and proponents of antiquated notions of professional responsibility?

The great news is that your Commission need not decide which side's rhetorical excess is more charming. Nor need you rely on idle speculation. No, the real world has already offered us a laboratory where you can learn just how fragile a value professional independence is and how assiduously we all must work to defend it.

To what do I refer? Where have these experiments been going on unnoticed by the profession? The answer: right in front of our very eyes. First, look at our colleagues in the medical profession. A decade ago they relaxed the rules on physicians working for non-physicians. Suddenly a flood gate of pseudo-prosperity opened up and a tidal wave of cash spread across the land, offering the docs thousands, even millions for their practices. I remember myself looking longingly at my physician friends as they cashed out their patient lists. Why did I decide I hated the sight of blood, I thought.

But where are the physicians today? Can you find a happy doc? Of course not and why would one expect to? Having sold out to Mammon they now find themselves acting as supplicants in endless phone calls with high school clerks who decide for the physicians which medicine to prescribe, which procedures to undertake and how soon their patients are thrown out of their hospital beds. If this is what happens to a vulnerable value _ professional independence — when literally matters of life and death are on the line, can we expect a different result when the issue is the preservation of important, if less cosmic values like loyalty, confidentiality and client autonomy?

Nevertheless, some might argue that all that organic chemistry and ninety hour weeks as residents have left the medical professional more likely than tough lawyers to lose their independence. To them I point to my second example: lawyers hired by insurance companies to represent the insureds. Nowhere to date have we seen more interference with independent professional judgment than what has occurred as these economic behemoths have retained counsel, on a take it or leave it basis, to undertake these important engagements. Here its not billing clerks but claims adjusters working on compensation incentives that have nothing to do with effective representation and everything to do with minimizing costs on a macro basis who tell lawyers if and when they can take depositions, whether they can engage experts, what motions to file and whether they can bill for in-house conferences. Some insurance companies even insist that lawyers misrepresent their status to their insured clients by establishing fake law firm names, letterhead and office décor to hide the fact that these "independent" lawyers work full-time for the insurance companies. The drive to interfere with professional independence went so far that when the august American Law Institute sought to address the role of the lawyers hired by the insurance companies to represent the insured in drafting the Restatement of the Law Governing Lawyers, the insurance industry's representative (a most articulate and independent lawyer himself) fought to have the words "professional independence" removed from the applicable provision, § 215!

While I would disagree, some might assert that insurance is also a special case. What happens there is unlikely to be a precedent for what would happen if lawyers went to work for a prestigious professional service firm like Arthur Anderson. Which brings me to the third example and the one the proves the point. We don't have to speculate on whether lawyer's would lose their professional independence if they became a part of KPMG. The lawyers have already done so. While we slept the Big Five have systematically hired thousands of our best and brightest. Look at that result, Honorable Members of the Commission, and you will find all the proof you need that this road leads to perdition.

First, these lawyers are violating Rule 5.4 by sharing fees with non-lawyers. Recognizing the impediments presented by Rule 5.4, the accounting firms argue these lawyers are not practicing law _ no, they are practicing tax or investigations or mergers and acquisitions. But not law. The argument that these lawyers are not engaged in the practice of law has as much merit as President Clinton's that he did not engage in sex. The contention relied upon _ that a law degree is not required to do the things these lawyers are doing — in some cases is simply false and in others irrelevant. There are many activities lawyers undertake that non-lawyers are free to do. But, this does not mean that when lawyers do them they are not the practice of law. The construct invented by the accountants is worse than fallacious _ it is cynical, insensitive and speaks volumes about the attitude those in control of accounting firms take toward the precious commodity we call being a lawyer. . . .

The fact that many talented lawyers would erect such a disingenuous argument to rationalize their unethical conduct should alone demonstrate how quickly lawyers who work for non-lawyers become beholden to their masters. But there is more, so much more. While a Kathryn Oberly may appear before your Commission to declaim that the Big 5 seek to preserve our core values, one learns on even a quick examination that in fact the accounting firms are a one profession wrecking crew, destroying any ethical rules that stand in their path.

Take confidentiality. Our rules preserve confidential treatment for all information learned in the course of a representation. What an uncomfortable notion that must be when a lawyer works at an accounting firm. By definition the core value of the attest function of an accounting firm is the public disclosure of material information. While the accounting firms grate at the strictures this audit role places on their ability to grow, since providing too many consulting services, to say nothing of legal services, to their audit clients will undoubtedly compromise their independence, the Big 5 don't want to give up auditing entirely. Because of the oligopoly power, the entire world of public companies must hire one of the Big 5 as auditors, which of course provides these firms with their wedge into this cohort of the biggest enterprises and permits them to leverage that presence into a vast array of other engagements.

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Moreover, information is ambiguous and materiality a term of art, not a mathematical formula. To place a lawyer in a trap between a duty to a client and a duty to his non-lawyer auditing masters creates an impossible dilemma whose only product can be second-rate legal services and a compromise of ethical principles. Advocates (and by that term I include all lawyers, transactional and trial), and auditors, as in that old Sesame Street song, don't "go together," especially when the topic is preserving confidences.

The Big 5's response to our other core value _ loyalty _ is even more troubling, in part because it affects every representation. Quite simply the accounting firms don't recognize, clear or care about conflicts of interest. This is so because in their view all conflicts are personal, limited to the individuals working on an engagement. And could it be any other way if they are to divide the entire corporate world in cinque partem? Which is fine, one would suppose, (or at least none of our business) if the services being offered are in the audit arena. But when it comes to lawyering, we promise and deliver far more. We impute one lawyer's conflicts to all lawyers in the lawyer's firm. Our clients need not worry that while we are suing A on behalf of B that our tax department is developing a new pension plan for A, unless B is told of the representation of A and consents to waive the conflict.

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The truth is that accountants, in order to guarantee their ability to hire and retain lawyers to work for their firms, actually have the chutzpah to ask us to destroy what they refer to as our "antiquated notions" of loyalty, to eliminate imputation and embrace their more "enlightened" views on this topic, views that have made it possible for them to employ more lawyers than our largest law firms. As a reward for their blatant violation of Rule 5.4, we should now accommodate them further by repealing Rule 1.10!

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The Big 5 retorts that, more important than loyalty, we give the clients freedom of choice. If they don't like the fact that we undertake conflicting representations they can take their business elsewhere. Has there ever been an argument that more sublimated client protection to business expansion? If they ever tell the client of the conflicting representation at all (something the accounting firms do not even attempt to assure) examine carefully the choice of the Big 5 Offers. A client hires a lawyer at the Big 5. The lawyer performs services for eighteen months. The client is now told the auditing firm is taking on the client's adverse party in a (let us hope) unrelated matter. What is the choice? The client can accept the fact that its multi-disciplinary provider is working for the other side and worry how many punches will be pulled to assure that the new offending representation stays put. Or the client can fire the Big 5 firm, waste the fees, time and learning curve the firm provided, and look for another firm to represent the client. The only choice presented is the one our friend Hobson was given. Yet the Big 5 proudly proclaim this choice as a preservation of our core values. Ladies and Gentlemen of the Commission: Orwell lives.

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The frontal attacks on our core values of confidentiality and loyalty are not the end of what we find occurring at the laboratory of the Big 5 accounting firms. Far from it.

1. Non-competition Agreements. Professionals at the accounting firms are asked to sign agreements not to compete after they leave the firms. An American Express-owned accounting firm is seeking to enforce one of these against a former employee lawyer right now. The seeking or providing of such a restriction on the right to practice law is an assault on client autonomy that our ethical rules to not tolerate. The accountants apparently don't care.

2. Steering. The power of the Big 5 cannot be overstated. Without their unqualified opinion, companies cannot go public, have difficulty raising money and often cannot survive. Only these five entities can provide the Good Housekeeping Seal of Approval, and without the seal….well, nobody wants to find out. This entrée into the rarefied world of the world's largest enterprises has been the fuel behind the vast expansion the Big 5 has enjoyed. While auditing is a slow-growth line of endeavor, the Big 5 have increased their non-audit services in consulting to the point that the Chief Accountant of the SEC has expressed the Commission's concern that the independence of the audit function may be compromised. Yet we learned in a MDP forum in Toronto at the ABA Annual Meeting that the Big 5 in Europe are using their audit power to steer clients to hire their lawyers as well. Such a steering strategy is quite troublesome, certainly flying in the face of our rules about paying anyone something of value for referring business to lawyers.

3. Advertising. Our profession has so carefully circumscribed what advertising of legal services is permissible. We may not promise results. We may not tout past success. We may not use the identity and experience of our clients. It will come as no surprise to the members of the Commission, who cannot miss what the Big 5's awesome ad budgets buy as you flip the channels or race through airport concourses, that those firm's advertisements violate all these principles. Slick. For sure. Ethical for lawyers. Certainly not.

4. Business with Clients. My reference to the Big 5 entering the medical service field may have been facetious. But there are few areas of financial endeavor the Big 5 don't think they can enter. We have learned how the Big 5 now seeks to sell insurance, annuities and other investment "opportunities" to their accounting clients. The rules governing lawyers doing business with their clients are elaborate, designed to provide meaningful safeguards if lawyers dare to enter this fray. The Stanley Commission, in examining professionalism, argued that the one of the greatest threats to this value was lawyers engaging in business with their clients. Lawyers working for accounting firms, for whom doing business with clients is an ever-expanding profit center of the firm, are confronted with grave ethical questions under Rule 1.8.

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One final note on the Big 5 entering the law world, if you will. Some, including one member of your Commission has argued that there is no difference between the conduct of the Big 5 in hiring lawyers and the movement by corporations to hire in-house counsel. In each case the lawyers are employed by non-lawyers, so the syllogism apparently goes.

To which I say balderdash. In one case a client hires a full-time lawyer to represent the client. While it is true that this lawyer, in order to exercise the ultimate act of professional independence _ withdrawal _ must lose her job. But that lawyer deals with no conflicts (she only has one client), has no need to compromise the client's confidentiality, and does not represent a profit center for its employer, but rather a cost. On the other hand, when lawyers are employed by non-lawyers to deliver services to third party clients all of the issues on imputation, confidentiality and independence of professional judgment arise.

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As you consider the attempts by the Visigoths to simply reduce lawyers and lawyering to their lowest common denominator _ just another set of service providers providing just another service all to be offered at a one stop shop — I ask you to cast your eyes toward the ballroom at the Mayflower Hotel in Washington, D.C. Recall with me, if you will, the ten years the august American Law Institute has spent considering the Restatement of the Law Governing Lawyers, a project now nearing completion. Tens of thousands of hours, thousands of pages, thirty drafts to achieve a codification of the special law that governs lawyer conduct and lawyer responsibility. You cannot find better "proof" that lawyers are anything but generic service providers and that what is in peril here is so much more important and worth preserving than any benefits that could possibly be achieved by destroying our ethical foundations. Yet all of that work is trivialized by those who would treat us like a stockbrokers, insurance salesmen and business consultants to our "customers."

Before I appeared before your Commission, I had always defended our Model Rules and particularly Rule 5.4 in the name of clients. And I remain convinced that client protection alone provides more than enough justification for our present regulatory framework. Not one of the ethical rules I have discussed is designed to protect lawyers. We would all be far better off economically if each of them was discarded. But it is for the clients that they were crafted and it is for the clients that they should remain in place.

There is another important argument, however, which deserves great weight. The independence of our profession has significant institutional value for our American society. Whatever may be the role of lawyers in these other countries where the Big 5 have swallowed law firms with nary a whimper, our profession in America is different. Each of us is an officer of the court, each of us is licensed with power to start law suits, subpoena witnesses, opine regarding transactions, stand between our clients and the awesome power of the state. It is we who are charged with undertaking pro bono services, defending the independence of the judiciary, accepting court appointments, providing volunteer services for our bar associations, recommending discipline of our own, teaching continuing legal education courses, explaining our system to the public and working to improve the laws and legal institutions. What will happen to these values when lawyers work for others in for-profit enterprises providing legal services to the world? Can we expect Arthur Andersen to take a tolerant attitude toward a death penalty representation? Or Sears to be pleased its lawyer employees are supporting the Legal Services Corporation, the funder of consumer complaints on behalf of the indigent?

This is not, like the destruction of our ethics rules, a cataclysmic point. This one reflects more likely a slow death. It reminds me of what happens when the biggest company in a town gets purchased by folks from far way. The new buyer may give lip service to giving back to the community. But the reality is the town will soon learn it has lost its soul.

* Written remarks submitted to the ABA's MDP Commission. Mr. Fox participated in the MDP Commission's hearings. A complete report of those hearings can be found on the ABA's website, www.abanet.org. Mr. Fox is a partner in the Philadelphia firm of Drinker Biddle & Reath LLP.