Ethics Counsel on

OBA Ethics Counsel

Ethics Opinion No. 117

Adopted September 25, 1936

The Board is in receipt of the following inquiry:

"'A' is a lawyer. 'B' is a banker. 'A' leaves the state and is gone several weeks. While 'A' is away 'B', who is not a member of the bar, takes a probate case for 'A', prepares a petition, to which he signs 'A's' name, and causes notice to be given to creditors. When 'A' returns he proceeds with the case. Is this proper?"

In response:

The conduct of 'B' constitutes the unlawful practice of law and may be punishable as a contempt of court, and as a misdemeanor under the provisions of Sections 46 and 48 of the State Bar Act.

So far as 'A' is concerned, it does not appear that the acts of 'B' were authorized by him. If they were, 'A' would be guilty of (a) aiding and assisting 'B' in the unlawful practice of the law and (b), of an infraction of Rule 29 of the Rules of Professional Conduct which provides:

"It is equally unprofessional to secure business by indirections through touters of any kind ..."

See Advisory Opinion No. 2.

If 'A' did not authorize the acts of 'B' it would seem, in justice to the innocent client, that 'A' should proceed with the case, but 'A' should advise 'B' to cease and desist from similar conduct in the future.