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OBA Ethics Counsel

Ethics Opinion No. 49

Adopted February 24, 1933

The Board is in receipt of the following request for an opinion:

"The purpose of this letter is to get an advisory opinion relative to the following set of facts. The Merchants and Consumers Co-operative Association, a proposed organization, proposes to procure one individual or company, in each line of business or profession to represent the individual members of this organization for a 10% reduction in the fees. This company also proposes to obtain 1,000 members. Also the company charges $3.00 per year to belong to this organization to its individual members. Now would it be unethical for an attorney to represent these members of this company under these circumstances? I would like to get an opinion as soon as possible a I have a tentative agreement on this particular proposition."

It is assumed that the retainer would be paid by the organization and that the duty of the attorney would be to represent the individual members of the organization in respect to their individual affairs.

The Board is of the opinion that it would be contrary to the Rules of Professional Conduct, as approved by the Supreme Court, for a member of the Bar to enter into and carry out such an arrangement, for the following reasons:

(1) The consummation of the plan would constitute the practice of law by a lay organization. If a lay agency is not entitled to practice law directly, it is not entitled to do so indirectly by employing licensed attorneys to carry on that portion of its activities.

(2) Section 46 provides that only active members of The State Bar may practice law and Section 48 provides that the unlawful practice of law constitutes a misdemeanor. Therefore, a member of the Bar who assists a lay organization in the practice of law is particeps criminis in that respect, and, of course, is thus guilty of wrongdoing.

(3) The member of the Bar would be guilty of a violation of Rule 29 of the Rules of Professional Conduct because he would be guilty of soliciting business by indirection through the organization, and of Rule 37, which provides that the services of a lawyer shall not be controlled or exploited by a lay agency, and that

"A. lawyer may accept appointment from any organization ... to render legal services in any matter in which the organization, as an entity is interested, but this employment shall not include the rendering of legal services to the members of such an organization in respect to their individual affairs."

The essential dignity of the profession forbids the solicitation of business by a member of the Bar or the exploitation of his professional services and it follows that he cannot properly enter into any relation with another to have done for him that which he cannot properly do for himself.

The entire subject is fully discussed in Advisory Opinion No. 1, Vol. 25, 1931, Report of the Proceedings of The State Bar at page 161.

The opinion of the Board is in accord with that of the Committee on Professional Ethics and Grievances of the American Bar Association, as evidenced by its opinions Nos. 8, 31, and 56.