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OBA Ethics Counsel

Ethics Opinion No. 238

Adopted March 17, 1966

This Committee has been asked by the Chairman of a Grievance Committee of a County Bar Association the following questions:

1. Is it proper for an individual who possesses the dual qualifications of both a lawyer and a doctor to hold himself out to the public as qualified in both professions?

2. Are all of the members of a law firm guilty of impropriety when one member of the firm is guilty of unethical conduct?

3. Is it unethical for one firm of lawyers and two doctors all engaged in the general practice of law and medicine to occupy a one-story building and to advertise and name the building, "Medical-Legal Building"?

Syllabus 1. Dual Professions. It is improper for a lawyer to engage in the carrying on of dual professions when they are of such a nature or are so conducted as to be inconsistent with his duty to his client and as a member of the Bar.

Syllabus 2. Advertising. The person who is qualified as both a lawyer and a doctor must choose between holding himself out as a lawyer and holding himself out as a doctor, even when each profession is carried on from different locations.

Syllabus 3. Dual Professions. It is improper for a lawyer to practice two professions where there might be a possibility of a conflict of interest or a violation of confidence of the client.

Syllabus 4. Responsibility of Firm for its Member Acts. A firm of lawyers may not knowingly permit one of its members to engage in unethical conduct without each member of the firm becoming equally responsible for such acts of conduct.

Syllabus 5. Advertising. It is a violation of Canon 27 to advertise or name a building a "Law Building" or a "Medical-Legal Building" where only one firm of lawyers occupies said building.

OPINION

Question 1. When a person becomes a lawyer he takes on a mantle that he cannot thereafter take on or off as he pleases. Conduct in which he engages which involves the practice of law when engaged in by lawyers must be in accordance with the ethical standards of the profession if he is to retain his professional status.

Canon 47 provides, "No lawyer shall permit his professional services, or his name, to be used in aid of, or to make possible, the unauthorized practice of law by any lay agency, personal or corporate."

In a number of opinions, both the Oklahoma Bar Association and the American Bar Association have held that it is unethical for a lawyer to engage in various other businesses and occupations where such business was of such a nature that readily lent itself to procuring professional employment for him as a lawyer, or was of such a nature that it could be used as a cloak for indirect solicitation on a lawyers behalf, or was of a nature that, if handled by a lawyer, would be regarded as the practice of law.

While the practice of medicine if handled by a lawyer would not be regarded as the practice of law, this Committee feels that the maintenance of the strictest standards by both professions would be violated in many respects if a lawyer were permitted to engage in the practice of medicine.

Canon 6 states,

"The obligation to represent the client with undivided fidelity and not to divulge his secrets or confidences forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed.

"It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose."

Canon 35 states,

"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."

Canon 37 states,

"It is the duty of a lawyer to preserve his client's confidences. This duty outlasts the lawyer's employment, and extends as well to his employees."

It is this Committee's opinion that the practice of medicine by a lawyer, from the same location or different locations, is by its nature so fraught with the dangers of conflict of interest, violation of the confidences of a client, and so readily lends itself as a cloak for indirect solicitation and the means for procuring professional employment, that it would be practically impossible to adhere to the Canons of Professional Ethics of the Bar Association. It is readily apparent that a doctor-lawyer, who treated a patient in a professional capacity, would become the patient's confidant and as such, if retained by the patient to handle his legal matters in a lawyer-client relationship, could not ethically testify as a medical witness. It is patently obvious that a doctor who is in a confidential relationship with a patient is in a position to direct him in his legal affairs even though there might be a conflict of interest. The dual capacity of a doctor-patient and a lawyer-client relationship both one and at the same time by the same person is, in this Committee's opinion, totally incompatible and is reprehensible. Since each by their very nature involves total devotion to the duties of the separate professions as well as extreme confidential relationship with the patient or client, avoidance of any suspicion of impropriety is of the utmost importance.

Question 2. A partnership is a separate legal entity and the relations of partners in a law firm are so close that the firm, and each member thereof, is responsible for knowingly permitting or condoning the unethical act of any one of its members. We have qualified this opinion by adding the word, "knowingly", since it is conceivable that one member of a firm could be guilty of impropriety without the knowledge or consent of the other members. It is the opinion of this Committee that if any one of the members of the firm knows of acts of unethical conduct by his partner or associate, and permits such conduct to continue, passively or otherwise, that such member is equally guilty of misconduct.

Question 3. It is unethical to name a building, occupied by only one firm of lawyers, a "Law Building", "Legal Building", or any other name which would advertise the lawyers' profession. It follows that using the name, "Medical_ Legal Building", in the question submitted would be advertising and in violation of Canon 27.

See Canons 6, 27, 35, 37, and 162 of the Canons of Professional Ethics of the American Bar Association; Advisory Opinions 185 and 208 of the Oklahoma Bar Association; and Advisory Opinions No. 33, 272, and 297, and Informal Opinions No. C_424, C_441, C_442, C_501, C_506, C_520, C_556, C_565, C_682, and C_709 of the American Bar Association Committee on Professional Ethics.