Can a lawyer take landlord-tenant work referred through a real estate brokers' association?

Plain-English summary

The property management committee of an area real estate agents' association, composed of brokers and managers from local firms, sent letters to law firms requesting proposals, including a fee schedule, to represent its members in matters such as forcible entry and detainer actions and small claims. The inquiry asked whether a lawyer could accept employment on behalf of such a unit, and whether the committee's letter constituted the practice of law.

The opinion noted the inquiry was unclear as to whether the lawyer would represent the association members as agents of the property owners or the property owners themselves. Assuming the lawyer represented the property owners referred by the association with no fee splitting between the lawyer and the association or its members, the opinion concluded the arrangement did not contravene the Rules, though the lawyer had to exercise care to avoid conflicts under Rule 1.7. If instead the lawyer represented the brokers as agents of the owners, the opinion concluded the Rules circumscribed the conduct: Rule 5.4(a) bars fee sharing with a nonlawyer and 5.4(b) bars letting a person who recommends, employs, or pays the lawyer direct the lawyer's professional judgment; Rule 5.5(b) bars assisting a nonlawyer in the unauthorized practice of law; and Rule 7.3 forbids solicitation for pecuniary gain, subject to exceptions such as services under the auspices of a trade organization.

The opinion concluded that Opinion 91-3, involving a collection agency retaining an attorney as agent for creditor-clients, was applicable: such representation is permissible provided no fees are divided in violation of Rule 5.4(a), the lawyer confirms the agent's authority to employ counsel consistent with Rule 5.4(b), there is no improper solicitation under Rule 7.3, and the agent does not engage in the unauthorized practice of law contrary to Rule 5.5(b). On the second question, the opinion concluded that requesting fee proposals from law firms, standing alone, does not constitute the practice of law, likening it to governmental requests for proposals, and suggested consideration of Supreme Court Rule 730 on legal service plans.

Currency note

This opinion was issued in 1992, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in May 2010 as generally consistent with the 2010 Rules (pointing to Rules 1.7, 5.4, 5.5(a), and 7.3), while noting the specific standards referenced may differ from the 2010 Rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a lawyer take landlord-tenant work referred by a brokers' association?

A: The opinion concluded the lawyer may, whether representing the owners or their agent-managers, provided there is no fee splitting, no improper solicitation, and no assisting the association's unauthorized practice of law.

Q: What must the lawyer confirm before acting for the agent-managers?

A: The opinion concluded the lawyer must confirm the agents are authorized to employ counsel and act on the clients' behalf (Rule 5.4(b)) and must not let the association direct the lawyer's professional judgment.

Q: Is the association's request for fee proposals the practice of law?

A: No. The opinion concluded that requesting fee proposals from law firms, standing alone, is not the practice of law, similar to a governmental request for proposals.

Background and rules framework

The opinion interpreted Rule 5.4(a) and (b) (fee sharing with nonlawyers; nonlawyer interference with professional judgment), Rule 5.5(b) (assisting unauthorized practice), Rule 7.3 (solicitation, with its trade-organization exception), and Rule 1.7 (conflicts), following Opinion 91-3 (Model Rules 5.4, 5.5, 7.3, 1.7).

Citations and references

Rules of Professional Conduct:

• Model Rule 5.4 (professional independence; fee sharing) / Illinois Rule 5.4(a), (c)
• Model Rule 5.5 (unauthorized practice) / Illinois Rule 5.5(b)
• Model Rule 7.3 (solicitation) / Illinois Rule 7.3
• Model Rule 1.7 (conflict of interest) / Illinois Rule 1.7

Statutes:

• Illinois Supreme Court Rule 730 (legal service plans)

Other opinions cited:

• ISBA Opinion No. 91-3 (collection agency retaining counsel as agent for creditor-clients)

See also

• ISBA Ethics Op. 93-11: Third-Party Fee Payment
• ISBA Ethics Op. 94-08: Paying a Nonlawyer for Referrals
• ISBA Ethics Op. 92-20: Taking a Client From a Claims Firm

Source

• Landing page: https://www.isba.org/ethics/opinions/9118