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OBA Ethics Counsel

Ethics Opinion No. 64

Adopted November 24, 1933

The Board of Governors is in receipt of the following inquiry from a member of the State Bar:

"I have offered to me the following proposition. A Mr. X, of this city, is operating a barter and trade exchange, and has some ninety members handling various goods, wares and merchandise. He offers to issue to me $450.00 worth of coupons for $500.00 worth of services; services to be charged by the regular fees. These $450.00 worth of coupons are redeemable among any of the various subscribers for merchandise of various kinds. The 10% commission charged is his fee for negotiating the exchange or commission on merchandise purchased. From this statement, is there anything in this arrangement that would meet with the disapproval of the Board of Governors?"

In response:

The proposed arrangement is disapproved of and its consummation would merit disciplinary action.

The proposed arrangement would constitute the exploitation of the professional services of the member of the bar by a lay agency. This is interdicted by Rule 37 of the Rules of Professional Conduct of the State Bar of Oklahoma, which provides that "the professional services of a lawyer shall not ... be exploited by any lay agency ... which intervenes between client and lawyer." This rule further provides:

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

In this connection see Advisory Opinion No. 1, page 161, Reports of the State Bar for 1931, wherein it is said:

"There is another reason why such a practice is abhorrent The essential dignity of the profession forbids a lawyer to solicit business or exploit 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, tends to lower the standards of professional character and conduct and thus lessens the usefulness of the profession to the public, and that a lawyer who co-operates with, or makes it possible for, others to commercialize the profession and to bring it into disrepute by allowing his services to be exploited, or dealt in like merchandise, is guilty of conduct unbecoming a member of the State Bar of Oklahoma."

See also Advisory Opinion No. 55, page 69, July 1933 Bar Journal.

Furthermore, the proposed arrangement would in effect constitute Mr. X a touter for the inquiring member of the bar--the more business Mr. X secured for him the greater the commission of Mr. X. Rule 29 of the Rules of Professional Conduct condemns this course of conduct in the following language:

"It is equally unprofessional to secure business by indirections through touters of any kind."

See Advisory Opinion No. 5, page 170, Reports of the State Bar for 1931.

The observance of the Rules of Professional Conduct of the State Bar, and in the instant inquiry the particular rules referred to, marks clear the distinction between trade and business and the profession of the practice of law. Rule 31 of the Rules of Professional Conduct enjoins upon the members of the bar that they "strive at all times to uphold the honor and to maintain the dignity of the profession."