Can a lawyer run a consulting business that gives legal information to businesses through training sessions?

Plain-English summary

The Committee was asked whether an attorney could establish and operate a consulting business that would disseminate legal information to businesses through training sessions, such as a session for managers on "Employment at Will, Discharging an Employee." It gave a qualified yes. The opinion observed that the Code of Professional Responsibility makes no distinction between a lawyer acting as a lawyer and a lawyer concurrently engaged in another occupation, and cited EC 8-3 for the point that members of the public should be educated to recognize legal problems and the need for legal services.

The opinion drew on KBA E-270, which had listed cautions for lawyers providing legal education to non-lawyers (not giving personal legal advice to call-in viewers, avoiding comment on pending litigation, protecting privileged communications, and acting with dignity). It also cited KBA E-74, which incorporated ABA Informal Opinion 775's five-part test for a lawyer engaging in a separate occupation: the business is not the practice of law when conducted by a lawyer; it can be conducted consistent with the canons; it is not used to advertise or solicit legal matters; it will not inevitably serve as a feeder to the law practice; and it is not conducted from the law office except where volume makes separate quarters infeasible. The opinion identified the central concern as the risk that the consulting business would be used as indirect advertising that circumvents SCR 3.135, and concluded that so long as SCR 3.135 and the principles in KBA E-270 are followed, the lawyer may operate such a business.

Currency note

This opinion was issued in 1984 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a Kentucky lawyer run a separate consulting business teaching legal topics to businesses?

A: Under this opinion, yes, with conditions. The Committee gave a qualified yes so long as the lawyer follows SCR 3.135 and the cautions in KBA E-270.

Q: What is the main ethical concern with such a business?

A: The opinion identified the risk that the lawyer would use the consulting business as a method of indirect advertising, circumventing the advertising rule SCR 3.135.

Q: What conditions did the opinion attach?

A: The opinion drew on the ABA Informal Opinion 775 factors (the business is not the practice of law, can be conducted consistent with the canons, is not used to advertise or solicit legal matters, will not inevitably feed the law practice, and is kept separate from the law office) and the KBA E-270 cautions on educating non-lawyers.

Background and rules framework

The opinion applied SCR 3.135 (lawyer advertising) and EC 8-3 of the former Code, along with the dual-occupation analysis from ABA Informal Opinion 775. The modern analogs are Model Rule 5.7 (responsibilities regarding law-related services) and Model Rule 7.3 (solicitation), with the advertising principles now in Model Rules 7.1 and 7.2. The analysis turned on whether the separate business functions as indirect advertising or a feeder to the law practice.

Citations and references

Rules of Professional Conduct:

• SCR 3.135; EC 8-3 (former Code)
• MR 5.7 (law-related services); MR 7.3 (solicitation)

Other opinions cited:

• KBA E-74; KBA E-270; KBA E-274; ABA Informal Opinion 775; In re R.M.J., 455 U.S. 191 (1982)

See also

• KBA Ethics Op. E-318: Lawyers Forming a Legal-Research Service for Other Lawyers
• KBA Ethics Op. E-408: Lawyer as Real Estate Agent
• KBA Ethics Op. E-377: Lawyer's Mediation Corporation, Trade Name, and Solicitation

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-293.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-293
Issued: November 1984

This opinion was decided under the Code of Professional Responsibility, which was
in effect from 1971 to 1990. Lawyers should consult the current version of the
Rules of Professional Conduct and Comments, SCR 3.130 (available at
http://www.kybar.org), before relying on this opinion.

Question:

May an attorney establish and operate a consulting business that would disseminate
legal information to business through training sessions?

Answer:

Qualified yes.

References:

In re R.M.J., 455 U.S. 191 (1982); KBA E-274; KBA E-270; ABA EC 8-3.
OPINION

The question raised herein has been widely discussed among members of the Bar
Association, particularly in light of the Kentucky Supreme Court's recent rule regarding mandatory
continuing legal education. See, SCR 3.665, et seq. The attorney requesting the opinion
hypothetically asked whether it would be possible for an attorney to conduct a training session for
managers on topics such as "Employment at Will-Discharging an Employee." At the outset, it
should be noted that the Code of Professional Responsibility makes no distinction between a
lawyer acting in his/her capacity as a lawyer and a lawyer who is concurrently engaged in another
occupation. Frequently, lawyers are requested to be members of corporations or to serve in
leadership roles in charitable and civic activities. Moreover, Ethical Consideration 8-3 provides
that "[m]embers of the public should be educated to recognize the existence of legal problems and
the resultant need for legal services...
Somewhat related to the question raised herein is the extent to which lawyers may
participate in television programs aimed at providing general information about legal concerns to
the public. The Ethics Committee addressed this issued in KBA E-270 and included therein a list
of potential problems that may face lawyers cast in the role of providing education to
non-lawyers. The list, while not intended to be exhaustive was provided as a guide to lawyers
and consists of the following suggestions:
1.
The lawyers should not give personal legal advice to individuals who may call
in to the program.
2.
The lawyers should be very careful to avoid any mentioning as to any pending
or anticipated litigation that might interfere with a fair trial.
3.
The lawyers should be very careful not to mention any privileged
communications which may have been obtained as to any client past or present.

4.
The lawyers should remember that he/she represents all the lawyers throughout
the Commonwealth. He/she should act in a dignified manner and should not engage in
self laudatory statements. The lawyer in appearing should act with dignity and within
the accepted traditions of the legal profession.
Further, more than a decade ago, the Ethics Committee of the Kentucky Bar Association
spoke to the problem of the dual role of the attorney qua attorney and attorney qua businessman in
KBA E-74 which posed the question of whether an attorney could engage in both the practice of
law and the operation of a real estate business. Incorporated therein by reference was ABA
Informal Opinion 775 which stated that an attorney does not necessarily violate the canons by
engaging in a separate occupation (1) if the separate business is not necessarily the practice of law
when conducted by a lawyer; (2) if it can be conducted in accordance with the canons; (3) if it is
not used or engaged in such a manner as to directly or indirectly advertise or solicit legal matters
for the lawyer; (4) if it will not inevitably serve as a feeder to his law practice; and (5) if it is not
conducted in or from a lawyer's law office except where the volume of the law practice and
business is so small that separate quarters are not economically feasible and where, even in that
situation, there is no indication on the office, letterhead or otherwise that the lawyer engages in any
activity except the practice of law. While certain of the precepts embodied in ABA Informal
Opinion 775 are dated insofar as they relate to lawyer advertising, the concern raised by the
question herein is that the lawyer will utilize the consulting business as a method of indirect
advertising thereby circumventing SCR 3.135 (now Rules 7.01-7.60) which specifically relates to
lawyer advertising.
However, so long as the provisions of SCR 3.135 and the principles embodied in KBA
E-270 are adhered to, it would appear that an attorney may operate and establish a consulting
business that would disseminate legal information to businesses through training sessions.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky
Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor
rule). The Rule provides that formal opinions are advisory only.