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OBA Ethics Counsel

Ethics Opinion No. 208

Adopted February 9, 1961

Re: Propriety of an individual who possesses the dual qualifications of both a lawyer and either a certified public accountant or a public accountant of holding himself out as qualifed [sic] in both professions.

QUERY

Is it proper for an individual who possesses the dual qualifications of a lawyer and an accountant to practice law and on his office door, his stationery, or in any other manner or media, hold himself out as an accountant?

ANSWER

The term "accountant" when used herein shall mean either a public accountant or a Certified Public Accountant.

In a number of Opinions this Association has held it unethical to engage in certain phases of business and at the same time and from the same office practice law. See the following all in 341_343 P.2d, Oklahoma Decisions: Collection Service Opinion #4, page 13; Insurance Opinion #147, page 119 and the Insurance and Real Estate Business Opinion 165, page 132.

Opinion No. 165, Oklahoma Decisions 341_343 P.2d, considered the propriety of a lawyer selling insurance and real estate from his law office, The Opinion reviewed the Opinions of both the Oklahoma Bar and the American Bar Associations. That Opinion quoted from Opinion 57 of the American Bar Association as follows:

"It is not necessarily improper for an attorney to engage in a business; but impropriety arises when the business is of such a nature or is conducted in such a manner as to be inconsistent with the lawyer's duties as a member of the Bar. SUCH AN INCONSISTENCY ARISES WHEN THE BUSINESS IS ONE THAT WILL READILY LEND ITSELF AS A MEANS FOR PROCURING PROFESSIONAL EMPLOYMENT FOR HIM, IS SUCH THAT IT CANNOT BE USED AS A CLOAK FOR INDIRECT SOLICITATION ON HIS BEHALF, OR IS OF A NATURE THAT, IF HANDLED BY A LAWYER, WOULD BE REGARDED AS THE PRACTICE OF LAW. ..."

It was then said in Opinion 165:

"Generally a lawyer cannot, ethically, engage in the practice of law and at the same time and from the same offices carry on an advertising campaign to sell real estate and solicit insurance business for such activity would result in indirect solicitation of professional employment. This does not mean that a lawyer cannot sell or for that matter advertise his own real estate for sale, nor does it mean that he cannot, ethically, engage in any business, nor is he to be condemned because the business contact may result in professional employment.

The evil is in conducting the business in such manner as to be a means of soliciting, either directly or indirectly, professional employment."

Opinion 272 of the American Bar Association considered this question and said:

"... a lawyer should be precluded from holding himself out, even passively, as employable in another independent professional capacity. We find no provision in the Canons precluding a lawyer from being a C. P. A., or from using his knowledge and experience in accounting in his law practice.

"... a lawyer could not, as a practical matter, carry on an independent accounting business from his law office without violating Canon 27."

In keeping with our former Opinions it is clear that a lawyer who also possesses the qualifications of an accountant may not hold himself out to the public as qualified in accounting. The evil is not in being qualified in both professions but the evil is in conducting the accounting activities in such manner as to be a means of soliciting, either directly or indirectly, professional employment as a lawyer. This would violate Canon 27, 5 O.S.A., page 38 (Pocket part).

The purpose of Canon 27 is to assure that attorneys maintain a dignity necessary to command respect for the law and the profession and that legal problems be handled by those best qualified, rather than those merely best publicized. Joint practice by a lawyer-accountant will inevitably result in indirect solicitation of business to the extent that legal business is attracted by the accounting rather than the legal proficiencies of the individual. Conversely, legal activities, insofar as they place the individual's name before possible accounting clients, seem equally offensive to the professional ethics of the accounting profession. 63 Har. L. Rev. 1457 (1950).

Legal specialties have not been defined with reasonable certainty, and minimum standards have not been established for specialized practice in the law, therefore, there are no safeguards to protect the layman from the incompetent self-professed legal specialist, and for this reason a statement by a lawyer of a specialization has been condemned because it is misleading to the public. Therefore, a representation by a lawyer to the public that he is an accountant tends to imply special ability in the law and is objectionable as the representation of a specialty, which is nothing more than a form of advertising. 3 UCLA L. Rev. 360, 364 (1956). A lawyer-accountant engaging in the joint practice of law and accounting occupies an inconsistent position, for the lawyer owes a duty of loyalty to a client, while an accountant is clothed with a duty of impartiality. The clash in functions will appear in litigation where the attorney's privilege to refuse to reveal a client's communications might be incompatible with the need to examine him in his capacity as an accountant about the facts on which he rests his purportedly impartial certification. 63 Harv. L. Rev. 1457_58 (1950).

If a lawyer chooses to practice law, then he may not at the same time hold himself out to his clients or to the public as an accountant. To avoid any misunderstanding on the part of the public, he must make no reference, either in public, in communications with clients, by the designation on his letterheads or door, to any degree signifying proficiency in accounting held by him or to the fact that he might be privileged under different circumstances to practice as an accountant.

The lawyer-accountant may still utilize his knowledge and training in accountancy to become a better lawyer.

Since a lawyer-accountant must choose as between the professions as to which he will practice, and cannot at the same time hold himself out as qualified to practice both, then it would be unethical for him to carry on his letterhead or his professional cards or on his office door, in the telephone directory or in any advertising media the fact that he is both a lawyer and accountant.

While all of the states have not been checked the following have condemned the practice: Oregon, Opinion 34; Michigan, Opinions 35 and 124; Florida; see also Drinker's Legal Ethics 223 and American Bar Association Opinion 272.

GROUND RULES...For Person Who Possesses Dual Qualifications Of A Lawyer and An Accountant*

PREFACE

The Executive Counsel has asked our Committee to prepare and present suggested "ground rules" to be followed by one who possesses the dual qualifications of a lawyer and an accountant. The following rules are made as suggested guides. They are not all inclusive. For the Committee cannot anticipate or foretell all situations which may arise.

"THERE IS NO ACCOUNTING FOR LAWYERS"

A person who is qualified as both a lawyer and an accountant must choose between holding himself out as a lawyer and holding himself out as an accountant. See Advisory Opinion No. 208 (1961_1) O.B.A. "The Journal" No. 7, Vol. 32, February 25, 1961, p. 371. A.B.A. Opinion No. 297 Am. Bar Ass'n. Journal, Vol. 47, May 1961, p. 527.

If he chooses to hold himself out as a lawyer then:

1. He may utilize and apply accounting principles in the rendition of legal services. He may not render strictly accounting services as such. Nor may he employ an accountant on a salaried basis to render accounting services, nor associate in any way with an accountant to render such services.

2. He may do accounting work incidental to legal services rendered a client. He may hire an accountant on a salaried basis to assist him with accounting problems incidental to and in rendering legal services; provided however, that said salaried accountant so hired, shall do nothing in the performance of his services that the attorney himself could not ethically do under these rules. Such salaried accountant shall not engage in the general or "outside" practice of accounting while so employed. To do so would inevitably lead to indirect solicitation of professional employment of the attorney.

3. In the course of the practice of law, a lawyer may advise with respect to the probable tax effects of transactions.

4. He may not describe himself as a "Tax Consultant" or "Tax Expert" or by the use of any similar phrase.

5. He may not form a partnership or association with accountants for the purpose of the dual practice of law and accounting.

6. He may not advise as to the preparation of financial statements to be included in reports or to be submitted with the tax returns, or as to accounting methods and procedures, but may advise with respect to any legal matters pertaining thereto.

*Approved and Adopted by Executive Council At Its Meeting on December 14, 1961. Published in December 30, 1961 Journal, Part I.