Ethics Opinion

Opinion No. 76-10

October 1976

Summary: A lawyer may engage in another profession or business, provided that the lawyer does not identify himself or herself as a lawyer in any publication in connection with the other profession or business. The lawyer may also engage in the practice of law from the same office, provided that the lawyer does not indicate on his/her letterhead, office sign, or professional card that he/she is thus engaged in the other profession or business. A single telephone number may be used for both the practice of law and the other profession or business, provided that the mode of answering the telephone in the office, and the listing in the telephone directory, do not couple the two. [Editor's note: But see MBA Opinion 82-2, "which supercedes MBA Opinions 76-10 and 76-30 ... insofar as the advice contained therein is inconsistent with this opinion."]

Facts: (1) A lawyer is employed by a bank as its "Tax Officer," and the bank's advertisement for its "Income Tax Preparation Service" is signed by the lawyer, with his picture. He asks whether this is permissible, if he is in no way identified as a lawyer in the advertisement or elsewhere in connection with the bank's service in the bank's office.
(2) A practicing lawyer conducts both an insurance agency and a real estate agency in the same office from which he/she practices law, and is listed in three separate sections of the Yellow Pages, under real estate, insurance and lawyers, and each listing shows the same address and telephone number. The inquiry into the permissibility of the lawyer's conduct raises three distinct questions: (a) May a lawyer engage both in the practice of law and another profession or business? (b) May the same telephone number be used for a lawyer's law practice and the other profession or business? (c) May a lawyer conduct a law practice and the other profession or business from the same office?
Discussion: Nowhere in the Canons of Ethics and Disciplinary Rules (SJC Rule 3:22) is a lawyer prohibited from engaging in the practice of law and another business or profession. DR 2-102(E) directly addresses certain aspects of a lawyer's ethical responsibilities relative to multiple professions:
A lawyer who is engaged both in the practice of law and another profession or business shall not so indicate on his letterhead, office sign, or professional card, nor shall he identify himself as a lawyer in any publication in connection with his other profession or business.
(1) It is clear from the text of DR 2-102(E) that the lawyer may perform, and the bank may advertise, its "Income Tax Preparation Service" with the lawyer as its "Tax Officer," provided that the lawyer is not identified as such in any publication in connection with the "Income Tax Preparation Service."
(2) The clear implication of DR 2-102(E) is that the professional responsibilities of a practicing lawyer do not preclude him from concurrently engaging in other professions or businesses. ABA Formal Opinion 328 (1972). A practicing lawyer may, therefore, simultaneously engage in real estate and insurance businesses.
It is, however, equally clear in DR 2-102(E) that a lawyer must separate the identity of his law practice from that of his other profession or business. As this committee has previously stated, we construe DR 2-102(E) to prohibit a lawyer from either using his other profession or business as a subterfuge to promote his law practice or promoting his other profession or business by advertising the availability of his legal skills. Opinion No. 75-8. For these reasons, a lawyer must refrain from indicating his other professions or businesses in the professional representations to the public which are permitted by the disciplinary rules in letterheads, office signs and professional cards. Likewise, publications used in connection with the other businesses or professions may not identify him as a lawyer. ABA Formal Opinion 328 (1972); ABA Informal Opinion 1316 (1975).
The use of a single telephone number for both a law office and another profession or business would be proper provided that the mode of answering the telephone, and the listing in the telephone directory, do not couple the two. The listing of the inquirer in the Yellow Pages in three separate sections appears proper. We are not informed as to the mode of answering the telephone in the office.
The use of a single office for the practice of multiple professions raises further problems. The ABA Standing Committee on Professional Ethics has confronted a similar situation involving the practice of dual professions, such as law and public accounting, from one office. ABA Formal Opinion 328 (1972). The ABA Committee found little ethical difficulty with the operation of an "unrelated" business or profession from the same location as the lawyer's law office. With this conclusion, our committee agrees. ABA Opinion 328 further determined that a "law-related" occupation is so closely connected to the practice of law that a lawyer is considered to be engaged in the practice of law while conducting such occupation. Consequently, a lawyer must adhere to the Code of Professional Responsibility, including the disciplinary rules against advertising and solicitation, while conducting his "law-related" occupation.
Our committee believes neither a real estate agency, an insurance agency, nor an "Income Tax Preparation Service" involves services, or a need for services, which are essentially legal in nature, and we conclude that they are not "law-related" occupations. We therefore do not believe that the real estate, insurance and tax services need be conducted in compliance with the prohibitions in the Code of Professional Responsibility against advertising. To require a lawyer to conduct such businesses in compliance with such ethical proscriptions as those against advertising and solicitation in DR 2-101 and 2-103 would deprive a lawyer of the necessary means of competition available to all of his competitors. Such restraints would, in many instances, all but preclude a lawyer from engaging in other professions and businesses. We believe the Disciplinary Rules do not require such a result.
The conduct of multiple professions by a lawyer is not, however, without qualification. Whether a lawyer's other professions or businesses are conducted from his law office or from a different location, a lawyer clearly may not render legal services for a fee to clients or customers of his other businesses or professions, as one of the services performed in his other enterprises. A law practice remains subject to the proscriptions against advertising in DR 2-101 and against solicitation in DR 2-103. Nor may a lawyer accept employment from a customer of his other business after having given unsolicited legal advice or recommended directly or through another, that the customer obtain legal counsel, under DR 2-104.
If a lawyer is retained by a client who is also a customer of his real estate or insurance agency a serious conflict of interest may arise. Except with the consent of the client after full disclosure of a potential conflict of interest, DR 5-101 prohibits a lawyer from accepting employment "if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests." A lawyer's agency relationship with one or more insurance companies may, in many cases, reasonably affect his independent professional judgment on behalf of a policyholder. Similarly, as a real estate agent or broker, a lawyer's financial and business interests may reasonably affect his professional judgment on behalf of a prospective buyer. A lawyer's professional judgment should be exercised free of compromising influences and loyalties, EC 5-1, including economic pressures from third persons, EC 5-21. Absent a client's informed consent, DR 5-104 prohibits a lawyer from entering into business transactions with a client if lawyer and client have "differing interests" therein, and the client expects legal counsel therein for the client's protection. The interests of the lawyer and client may often differ where a lawyer seeks to serve his client in the lawyer's real estate or insurance agency.
As noted above, our committee does not regard the occupations involved in the inquiries as "law-related" occupations. We do agree with the ABA Opinion 328 that the Disciplinary Rules impose some limitations upon the lawyer's ability to engage both in the practice of the law and a "law-related" occupation for the same client. If the "law-related" occupation is conducted from a separate office, the lawyer should not accept clients from that occupation, unless such clients have selected him for reasons not related to his participation in that occupation. Where a lawyer's law practice and the "law-related" occupation are conducted from the same office, the risk that the other "law-related" occupation will be used to indirectly solicit clients for his law practice is so great, and the "appearance of professional impropriety" is so substantial (Canon 9; EC 9-6) that a lawyer should be precluded from accepting any general legal work from a client whose initial contact with him was as a customer or client of one or more of his "law-related" occupations. We so held in our Opinion 75-8, in which the legal research service advertised by the lawyer was clearly a "law-related" occupation. In this opinion, we also specifically noted that this "law-related" occupation could be publicized only "by means of letters and advertisements directed to other lawyers."

Permission to publish granted by the Board of Delegates, 1976. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.