Ethics Counsel on www.OKbar.org

OBA Ethics Counsel

Ethics Opinion No. 20

Adopted February 26, 1932

The Board of Governors is in receipt of the following communication from a member of The State Bar.

"Recently many citizens of this community received through the mail from a certain trust company doing business in this state, a communication enclosed in an envelope in the upper left hand corner of which appeared the name and address of the trust company. In the envelope was contained:

(a) a pamphlet entitled "Data for drawing your will;"

(b) a card to be returned, addressed to ............, Trust Officer, bearing the annotation "Personal" on which it is stated:

"Without any obligation on my part, I desire to have an appointment with you to discuss my will or other trust matters.

................

Suggested time for appointment ........."

(c) a slip in the mimeographed handwriting of the trust officer station (referring to the pamphlet). "You will find the enclosed convenient work sheet for planning your will."

X. Y. Z.

(facsimile of name of trust officer.)

(d) a return envelope addressed to the trust company upon which the announcement is made "postage will be paid by the trust company," and upon which in the lower left hand corner appears the word "confidential."

The person acting as trust officer is a member of The State Bar and as such is engaged in the practice of law on behalf of the trust company. The trust company follows the plan of drawing wills for its customers either with or without charge, seeking thereby to be nominated as executor, etc., and advises generally in connection therewith.

Is the member of The State Bar comporting himself according to the rules of professional conduct and according to the canons of legal ethics?"

In response to the inquiry:

Under all the authorities the drawing of wills and the giving of advice in connection therewith necessarily involves the practice of law. People v. Peoples Trust Co., 180 App.Div. 494, 167 N.Y.S. 767; People ex rel. Illinois State Bar Ass'n v. People's Stock Yards Bank, 344 Ill. 462, 176 N.E. 901.

As to what constitutes the practice of law, see also

Advisory Opinion No. 11, December 1931 State Bar Journal.

Advisory Opinion No. 1, April 1931 State Bar Journal.

In Opinion No. 1, in discussing an inquiry involving a similar situation attention was directed to Sections 46 and 48 of The State Bar Act, which are as follows:

Section 46. Only Active Members May Practice Law. No person shall practice law in the State subsequent to the first meeting of The State Bar unless he shall be an active member thereof as hereinbefore defined.

Section 48. Unlawful Practice a Misdemeanor. Any person other than a non_ resident attorney, who, not being an active member of The State Bar, or who after he has been disbarred or while suspended from membership in The State Bar, as by this Act provided, shall practice law, shall be guilty of a misdemeanor.

In that opinion it was said that it repeatedly has been held that a lay agency does not change the character of its acts by furnishing a duly licensed attorney to render the service which it offers to perform, as the attorney is merely its agent, under its control and in its employ for that purpose; and it was said that if a lay agency is not entitled to practice law directly, it is not entitled to do so indirectly by employing a licensed attorney to carry on that portion of its activities for it; and it was held to be the opinion of the Board that the rendering of legal services to its customers, present or prospective, by the applicant through its legal department, whether gratuitously rendered or rendered for profit directly or indirectly, pursuant to the proposed advertisement or otherwise, would constitute a violation of section 48 of The State Bar Act and would therefore be reprehensible.

With reference to the advertising or soliciting feature, in that opinion the observation was made that where a member of The State Bar to engage in an advertising campaign such as proposed by the applicant, he would be guilty of violation of Rule 29 of the Rules of Professional Conduct adopted by the Board of Governors and approved by the Supreme Court of the State, which in part is as follows:

"Solicitation of business by circulars or advertisements, or by personal communications or interviews, not warranted by personal relations is unprofessional. It is equally unprofessional to procure business by indirections through touters of any kind, whether allied real estate firms or trust companies advertising to secure the drawing of deeds or wills or offering retainers in exchange for executorships or trusteeships to be influenced by the lawyer."

Upon the inquiry is was stated to be the opinion of the Board of Governors that those members of the applicant's legal department, who were assumed to be members of The State Bar who knowingly participate in the plan proposed in the inquiry would be guilty, not only of the violation of Rule 29 of the Rules of Professional Conduct, but would also be particeps criminis in the violation of Section 48 of The State Bar Act; and In re Pace, 170 App.Div. 818, 156 N.Y.S. 641, which was a proceeding against certain members of the bar in which they were charged with assisting a corporation to practice law, was quoted from as follows:

"It may be taken, therefore, as the law in this state, that it is unlawful for a corporation, whether domestic or foreign, to practice law in the state, and that any member or our bar who assists a corporation in violating the law in this respect is himself guilty of wrong doing."

As above noted, Section 48 of the State Bar Act provides that any person other than a non-resident attorney, who not being an active member of The State Bar, who shall practice law shall be guilty of a misdemeanor. Section 2326, C.O.S.1921, 21 Okl.St.Ann. § 105, provides that the word "person" includes corporations as well as natural persons.

While the advertisement referred to in the letter of inquiry in this case does not expressly state that the trust company seeks to draw wills and to supervise their execution, it is logically to be inferred that that is at least one of the objects of the advertisement. The advertisement does expressly solicit persons to come to the trust company for advice in connection with that subject matter. The giving of advice in connection with that subject matter clearly constitutes the practice of law.

Another objectionable feature of the advertisement is that a member of the State Bar has allowed his name to appear as an officer of the trust company, seeking so to practice law. As said in opinion No. 1:

"The essential dignity of the profession forbids a lawyer to solicit business or exploit his professional services. It follows that he cannot properly enter into any relations with another to have done for him that which he cannot properly do for himself."

Opinion No. 41 of the Committee on Professional Ethics and Grievances of the American Bar Association, (page 900, January 1932 American Bar Association Journal) is as follows:

"A member of the Association asks the Committee to express its opinion as to whether it is proper for a lawyer who is a director of a bank or trust company, to allow his name to appear as a director in its advertisements which offer its services to the public in drawing wills and trust agreements and making examinations of titles.

This committee has already held, in Opinion 31, "That it is improper for an attorney to aid a corporation to practice law or in any way to participate in or sanction such practice." It is therefore improper for a lawyer to allow his name to appear as a director, officer or employee of a bank or trust company which in its advertisements, offers to draw wills or trust agreements, give opinion on titles or perform other legal services."

As said in opinion No. 4 of the Board of Governors (September 1931 issue) in connection with a similar method of solicitation:

"Such a course of conduct would be in violation of Rule 29 ... of the Rules of Professional Conduct in that such course of conduct would constitute the solicitation of business by circular or advertisement not warranted by professional relations ..."

It is true that under the facts upon which Opinion No. 4 was requested, the soliciting was done directly by the member of The State Bar; but, as we have seen, it is clear that that which cannot be done directly cannot be done indirectly.

The advertisements The Board of Governors finds referred to in the letter of inquiry solicit law business either for the trust company, which is forbidden to practice law, or for its trust officer, who is a member of The State Bar.

It is the opinion of the Board of Governors:

1. That is the trust company is engaged in the drafting and supervising the execution of wills, or in giving advice in connection therewith, for compensation, either directly or indirectly, or without compensation, therefore, it is engaged in the practice of law in violation of Sections 46 and 48 of The State Bar Act and that the attorney referred to, knowingly participating, aiding, and assisting therein, is particeps criminis, and accordingly is guilty of a wilful violation of his duty as a member of The State Bar, thus committing a cause for disciplinary action, to-wit, Cause No. 8.

2. That if the trust company is not engaged in the practice in connection with the drafting and execution of wills or in giving advice in connection therewith, the member of the State Bar referred to is guilty of a violation of Rule 29 (Canon 27) of the Rules of Professional Conduct of The State Bar of Oklahoma in that he has solicited business or knowingly permitted the solicitation of business for him by others, not warranted by personal relations, and is thereby guilty of a failure to uphold the honor and to maintain the dignity of the profession as required by Rule 31 of the Rules of Professional Conduct, by reason of which he is subject to disciplinary measures.