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OBA Ethics Counsel

Ethics Opinion No. 166

Adopted January 14, 1953

QUERY

A County Judge wrote the Committee on Legal Ethics and State-Wide Discipline a letter which reads in part,

"The Facts. The preparation of individual's income tax returns is not exclusively undertaken by the legal profession and is only an incidental phase of an an [sic] attorney's work. In fact, any individual may figure income taxes. As a practicing attorney, this attorney worked out a few individual's returns. Now, however, this attorney is a County Judge, ....

Query--Would it be proper under the above stated circumstances for the County Judge to prepare income tax returns for any individuals?"

(signed) _____________

County Judge.

ANSWER

The County Judge, in good faith and with the apparent desire to observe the proprieties, requests an opinion which we feel warranted in giving, realizing that we are faced with the question of whether or not this is a question for the Committee on Ethics or the Committee on Unauthorized Practices. If a lawyer Judge is engaging in unprofessional conduct we feel that a question of ethics is involved and should be answered.

We are not unmindful of the holding in Chambers v. Central Committee of Oklahoma Bar Ass'n, 203 Okl. 583, 224 P.2d 583, where the Supreme Court said, "... any such judge is not presently an attorney at law. In Soda v. Marriott, 130 Cal.App. 589. 20 P.2d 758, 759, at 761, it was expressly pointed out that 'one elevated to the bench is no longer an attorney at law.' A judge is precluded from being an attorney at law so long as he holds the judicial position. ...

* * * * * *

He is not practicing law. He has already been stopped from practicing law by going on the bench. ..."

Unquestionably the law that "stopped" him "from practicing law by going on the bench" is found in the Oklahoma Constitution and Statutes. Art. 7, Sec. 11 of the Constitution makes a county court a court of record. It further provides as one of the qualifications that the judge shall be "a lawyer licensed to practice in any court of record * * *." 5 Okl.St.Ann. § 1 reads in part,

"No person shall practice as an attorney and counselor at law in any court of this State ... who holds a commission as a judge of any court of record ...."

In Dickson v. State, 67 Okl.Cr. 365, 94 P.2d 258, the court in commenting on the statute said, "... It is apparent that one of the objects of the adoption of the statute was to separate the judge personally, as well as officially, from all that manner of life so calculated to destroy impartiality of judgment and balance of temper which may and does sometimes, influence the lawyer. ...

* * * * * *

There can scarcely be any doubt that public policy forbids a judge to practice law, ...."

In Eden v. Beaman, 167 Okl. 525, 30 P.2d 899, the court referring to the above constitutional and statutory provisions, said, "... to hold that a county judge is likewise disqualified to practice law, ...."

Judicial Canon 31 reads in part,

"If forbidden to practice law, he (Judge) shall refrain from accepting ANY PROFESSIONAL EMPLOYMENT while in office." (Emphasis supplied)

Is the preparation of tax returns the practice of law?

It is true that the tax returns may be prepared by a layman so long as he does not resolve difficult legal questions such as whether the taxpayer had attained the status of a lawful marriage with a woman with whom he had been living without a ceremonial wedding; whether he should file separate or joint returns, etc.

Gardner v. Conway, 234 Minn. 468, 48 N.W. 2d 788, there the Supreme Court of Minnesota said, "... it does not follow that the entire income tax field has been preempted by lawyers to the exclusion of accountants.

* * * * * *

Although the preparation of the income tax return was not of itself the practice of law, defendant, incidental to such preparation, resolved certain difficult legal questions, which taken as a whole, constituted the practice of law."

In the Gardner case the court found a layman practicing law because he advised the taxpayer on certian [sic] legal questions and enjoined said practice.

As said in Amer.Bar Ass'n's Opinion No. 57,

"The fact that a layman can lawfully render certain services does not necessarily mean that it would not be professional service when rendered by a lawyer. On the contrary, lawyers are frequently called upon to render such service for the very reason that it can be better rendered by a lawyer."

And said in Opinion 194, "... even though it may be lawful for a layman to perform such service (abstracting) ... we believe that it becomes a legal service when performed by a lawyer."

And said in Opinion 234,

"In many instances the proper 'making out' of income tax returns will directly involve the rendition of legal services. ..."

To the same or similar holding see A.B.A. Opinions Numbers 201, 225, 233, 239, 257, 260 and 269.

The Courts have recognized this principle. In 7 C.J.S. Attorney and Client § 23, p. 742, it is said, "... Conduct usual or permissible in a commercial business may not be permissible to a lawyer. ...."

In re Tracy, 197 Minn. 35, 266 N.W. 88, at page 91, 267 N.W. 142, the Supreme Court of Minnesota said,

"There has been some suggestion ... that so long as it is conducted by anybody, lawyers should be permitted to do likewise. ...

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"The point is in the fundamental difference between any commercial business and a profession. The vocation of a lawyer is a profession. In consequence, his conduct as attorney, counselor, and advocate is to be measured not by the indefinite, still developing and largely unwritten standards of trade and counting house, but by those of his profession which, while they have not reached their ultimate state, have yet not attained the development and degree of formulation evidenced by the Canons of Ethics. That being so, lawyers will do well to remember, for their own solace if for no other reason, that they are engaged in a profession rather than a business, and that it is by professional rather than commercial standards that their conduct will be judged when properly called in question. That basic and irremovable distinction both exposes and explains the error of those who choose to enter the legal profession supposing it to open an easy road to affluence."

From the above it seems that the answer to the question is relatively simple, whether or not it is the "illegal practice of law" for a layman to engage in the preparation of income tax returns is entirely beside the point. When a lawyer, be he judge or not, accepts employment to prepare income tax returns, he is accepting employment AS A LAWYER and in the preparation of those returns and the submission of them to his client he is practicing law.