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OBA Ethics Counsel

Ethics Opinion No. 244

Adopted September 16, 1966

INQUIRY

Is it improper for an attorney-trust officer of a bank to perform a service for a patron, of his employer bank, which, if performed by an attorney, constitutes the practice of law?

Is it unethical for a salaried trust officer of a bank, who is also an attorney, to permit his name to be published in advertising by the bank of services rendered by its Trust Department to the public, which would be considered the practice of law when done by an attorney?

OPINION

Advice to the public concerning matters which constitute the practice of law when done by an attorney, given by an attorney employed by a bank, even though he is holding himself out as a trust officer, of the bank, is an unethical practice. An attorney in such a position must consider himself with due objectiveness required of him as a lawyer at all times and remember that he is entirely subject to the canons of professional ethics.

Canon 35 states:

"That 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."

Since a lawyer cannot share his professional responsibility with a layman or a lay agency, it follows that he cannot properly share his professional emoluments with them. This of itself is sufficient to render it improper for a lawyer to allow his services to be sold or dealt in by any layman or lay agency. The canons of ethics by which a lawyer is bound explicitly prohibit a lawyer from soliciting business or exploiting 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.

It must, therefore, be held that the furnishing, selling or exploiting of the legal services of members of the Bar is derogatory to the dignity and self-respect of the profession. It tends to lower the standard of professional character and conduct and thus lessens the usefulness of the profession to the public. A lawyer is guilty of misconduct, when he allows his services to be exploited or dealt in, making it possible for others to commercialize the profession and bring it into disrepute. It matters not that no direct charge is made by his employer for his services, as an indirect advantage to his employer is inherent.

In part of the question presented, the attorney's employer is acting in a fiduciary capacity, and the matter therefore assumes an entirely different character. In that event, the attorney's employer, the bank, is only the nominal client; the actual interests which the attorney is engaged to protect are those of the patron of the bank. Such a separate interest can only be properly represented by an attorney, who in his professional capacity is under no obligation to another, such as that which must exist between master and servant. He must be free to exercise his independent judgment as an attorney for the benefit of the interest he represents, which he could not be expected to do while under the domination of a third party as its salaried servant.

In our opinion it is improper for an attorney to aid a trust company or corporation to practice law, and it is equally unethical for him to allow a bank or corporation to utilize his name in advertisements which would indicate that he will perform services which, when performed by an attorney, constitute the practice of law. This is clearly contrary to Canon 27: "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."

See Canons 6, 27, 35 and 47 of the American Bar Association. Opinions Number 10, 31, 35, 32, 122, and 60 of the American Bar Association, and Informal Opinions C754, C799, C746, and C837 of the Committee of Professional Ethics of the American Bar Association, and Opinions 238 and 240 of the Legal Ethics Committee of the Oklahoma Bar Association.