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OBA Ethics Counsel

Ethics Opinion No. 274

Approved June 23, 1973

INQUIRY

The Board of Governors of the Oklahoma Bar Association has requested the Committee's opinion as to whether the professional conduct of an individual possessing qualifications of both lawyer and accountant is governed by Advisory Opinion No. 208 of this Committee or by Formal Opinion No. 328 of the Standing Committee on Professional Ethics of the American Bar Association to the extent that the two opinions conflict.

OPINION

This Committee's Advisory Opinion No. 208 was adopted on February 9, 1961. It was rendered while the Canons of Professional Ethics, adopted by the Oklahoma Bar Association as of October 6, 1958, 5 O.S.1961, Ch. I, App. 3, were in effect. That opinion, following then current opinions of the American Bar Association Committee, held, among other things, that a practicing lawyer who also possessed qualifications as an accountant could not hold himself out to his clients or to the public as an accountant.

On December 16, 1969, on application of the Oklahoma Bar Association, the Supreme Court of Oklahoma adopted, effective January 1, 1970, the Code of Professional Responsibility ("the Code") of the American Bar Association as the standard of conduct for all members of the Oklahoma Bar Association. S.C.B.D. Nos. 2212, 2213, 40 Oklahoma Bar Association Journal 2744, 2745.

Formal Opinion 328 of the American Bar Association Standing Committee on Ethics and professional Responsibility is published in the November, 1972 edition of the American Bar Association Journal. As there noted by the ABA Committee, its opinions under the former Canons of Ethics regarding the "dual practitioner" condemned the practice largely on the basis that the second occupation constituted "indirect solicitation" and served as a "feeder" to the law practice. These objections were also the principal basis of this Committee's Advisory Opinion No. 208. As further noted by the ABA Committee, the terms "indirect solicitation" and "feeding a law practice" were entirely omitted from the Code thus indicating an intention not to rely on those vague phrases as standards by which to judge the outside activity and occupations of lawyers.

We concur that in adopting the Code it was intended that the standards to be applied to a lawyer who engages in a second profession or business activity are to be governed by specific Disciplinary Rules in the Code, particularly DR 2_ 101 through DR 2_105.

The Code does not prohibit a lawyer from engaging in another business or profession while he is also engaged in the practice of law. Accordingly, to the extent that Advisory Opinion No. 208 prohibits a lawyer who possesses qualifications of an accountant from holding himself out to the public as such, or from practicing accounting it is no longer applicable.

A lawyer who is engaged in the practice of law and another profession or business is, however, expressly prohibited from so indicating on his letterhead, office sign, or professional cards, and he may not identify himself as a lawyer in any publication in connection with his other profession or business. DR 2_102(E).

We deem it appropriate, in addition, to quote the following from ABA Formal Opinion 328 so that Oklahoma lawyers who are or may be simultaneously engaged in the practice of another profession or a business may be aware of the high risks of professional impropriety which confront them:

"In carrying on law-related occupations and professions the lawyer almost inevitably will engage to some extent in the practice of law, even though the activities are such that a layman can engage in them without being engaged in the unauthorized practice of law. See Opinion 57 (1932). This truism has been recognized in several of our former opinions. For example, in Opinion 272 (1946), it was said:

'In every case where a lawyer performs services for a client which could be performed by one not a member of the bar, nevertheless, in performing them in the course of his legal services he is acting as a lawyer and subject to the Canons.' (Emphasis added.)

"In Informal Opinion 709 (1964), it is said:

'A real estate brokerage business is so closely related to the practice of law that, when engaged in by a lawyer, it constitutes the practice of law.'

"If the second occupation is so law-related that the work of the lawyer in such occupation will involve, inseparable, the practice of law, the lawyer is considered to be engaged in the practice of law while conducting that occupation. Accordingly, he is held to the standards of the bar while conducting that second occupation from his law offices. With this qualification, the lawyer may carry on a law-related occupation, such as that of a C.P.A., from the same office.

"The qualification just stated is a substantial one, however. Illustrations may indicate its scope. For example, fees set by a lawyer purporting to carry on, from his law office, a mortgage brokerage or loan brokerage business must conform with DR 2_106. Publicity given to the second occupation and methods of seeking business must be in accord with DR 2_101, DR 2_103 and DR 2_104. The lawyer may have a duty under DR 4_101 to preserve confidences and secrets, or information, acquired in carrying on the second occupation even though others engaged in that occupation do not have a similar duty. Similarly, the lawyer may, in connection with the second occupation, owe a duty as a fiduciary even though the relationship of others in that occupation to their clients and customers is not that of a fiduciary, see DR 5_101, DR 5_104, and DR 5_105.

"The answer to the ... question is, therefore, that a lawyer may conduct, in compliance with DR 2_102(E), his law practice and a second occupation, not law-related, from one office; and he may practice from the same office both as a lawyer and as a member of a law-related profession or occupation, such as a marriage counsellor, accountant, labor relations consultant, real estate broker, or mortgage broker, if he complies not merely with DR 2_102(E) but with all provisions of the Code of Professional Responsibility while conducting his second, law-related occupation. A lawyer may not, of course, escape his obligations under DR 2_102(E) and under other disciplinary rules of the Code by the strategem of ostensibly dividing into two separate offices his office quarters which are, for practical purposes, unitary or integral. The following language from Informal Opinion 775 (1965) is relevant:

'While ... the Committee does not consider it to be necessarily unethical to practice law and concurrently, but in different transactions, engage in the real estate business, the Committee is of the opinion that to do so in accordance with the Canons is so difficult that suspicions of unethical conduct are almost inevitable. For that reason alone, it is our opinion that only a very few lawyers will expose themselves to such suspicions on the part of their brother lawyers and the public. The lawyer who does so must be willing to undertake the tremendous burdens of conducting his (other law-related) business ethically under our Canons ...."'

The Committee is of the opinion that Formal Opinion No. 328 of the American Bar Association Standing Committee on Professional Ethics correctly sets forth the standards of professional conduct made applicable by the Code to a practicing lawyer who is also engaged in another profession or business. We hereby adopt it. To the extent that our Advisory Opinion No. 208, written under the Canons, conflicts with this opinion, Advisory Opinion No. 208 is overruled.