Profit over duty in the age of MDPs

Stephen Fiamma is managing partner at Jones Day Reavis & Pogue's London office.

Multidisciplinary partnerships (MDPs) create economic pressure which compels professionals to compromise the duties they owe to their clients and to the traditional rules governing the professionals.

The accounting profession, and indeed many lawyers, take the position that such concerns are merely thinly-veiled attempts at protecting the legal profession.

But in reality, the concern is that the creation of a global MDP engaged vigorously in cross-selling its myriad of services creates economic incentives which will blunt the independent advice which professionals owe to their clients.

Here is a possible example to illustrate the point. Let us assume that the MDP involved is engaged in the full range of tax advisory, legal and auditing services.

The tax advisory arm, composed of accountants and lawyers, develops a tax planning technique which it markets to clients (or possible future clients).

If the client wishes to implement the proposal, the tax advisers will attempt to secure an engagement for the legal arm of the MDP to negotiate and document the plan.

But if the lawyers believe that the plan is flawed, can they bring their views to the attention of their client without compromising their MDP colleagues, who developed the plan in the first place? Would they be inclined to do so where the MDP's remuneration depends upon the plan's implementation?

The plan is now brought to the attention of the auditing arm of the MDP in the course of preparation of the client's annual accounts and report to shareholders.

If the auditors find that the plan is flawed will they blow the whistle on their tax advisory and legal colleagues? Or will they wave through a concept which they would find unacceptable if rendered by professionals who are not part of their own firm?

Many of us who practice in the tax area would conclude that the latter is likely to be the answer.

One of the implied benefits which large accounting firms sell when marketing a planning idea is the fact that it may be nodded through by their audit arms. This is in conflict with the special duty auditors owe to the public in connection with the certification of annual accounts and reports to shareholders.

I believe the legal profession should take a stand against the subtle erosion of independent professional judgement which is inevitable with the introduction of MDPs.

By protecting and reinforcing the standards we apply to guarantee independent advice, including traditional rules on conflict of interest, we will be setting ourselves apart from those who appear to put growth and profit before professional duty to clients.