NYSBA Ethics Opinion 59

NYSBA Ethics Opinion 59

5.23.1967

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION

Professional Ethics Committee Opinion

Opinion #59 – 05/23/1967 (18-67)

Topic: Legal Advice Without Attorney
­Client Relationship
Digest: Lawyer may serve as counsel to corporation or as chief executive officer, but he should not provide legal advice to subscribers of a service
Canon: Former Canons 35, 47

QUESTION

An attorney proposes to purchase a corporation which nationally advertises and which sells copyrighted bookkeeping records as well as a tax service which includes preparation of tax returns and the publication of a periodic tax letter.  Purchasers of the service may submit tax problems to the corporation.  The attorney would be the chief executive officer of the corporation; be on retainer to the corporation answer the tax problems submitted to the corporation; as well as maintain his private practice of the law. Is such an arrangement in violation of any of the Canons of Professional Ethics?

OPINION

It is not improper for an attorney, separate from his law practice, to own stock in a corporation and to serve as a chief executive officer or as counsel to that corporation in respect of that corporation’s legal problems, provided he does not use the corporation as a device for soliciting legal business. To the extent that the proposed arrangement involves supplying legal advice on specific questions submitted by purchasers of the service it violates the spirit and the letter of Canon 35, which reads as follows:
“35.      Intermediaries”The professional services of a lawyer should not be controlled or exploited by any lay agency, personal or corporate, which intervenes between client and lawyer.  A lawyer’s responsibilities and qualifications are individual.  He should avoid all relations which direct the performance of his duties by or in the interest of such intermediary.  A lawyer’s relation to his client should be personal, and the responsibility should be direct to the client.  Charitable societies rendering aid to the indigent are not deemed such intermediaries.”A lawyer may accept employment from any organization, such as an association, club or trade organization, to render legal services in any matter in which the organization, as an entity, is interested, but this employment should not include the rendering of legal services to the members of such an organization in respect to their individual affairs.”The corporation would be in the position of intermediary between the lawyer and the person seeking advice, and in effect would be exploiting the lawyer’s professional services. [See our Opinion #56- 3/31/67 (9-67).]We do not pass upon the question of whether or not the corporation in the course of rendering its tax service would be engaged in the unauthorized practice of the law in violation of Section 280 of the Penal Law, but note that if it is, then the conduct of the attorney would violate Canon 47, prohibiting aiding the unauthorized practice of the law by a lay agency.