I'm a sole practitioner who is also opening a temporary-lawyer placement agency with a non-lawyer. Is explaining an ABA opinion to other lawyers the practice of law, can I say I'm a Rhode Island lawyer in the agency's ads, and can the agency waive its placement fee when I take an assignment myself?

Plain-English summary

A sole practitioner told the panel that, separately from her private practice, she and a non-lawyer were jointly opening a placement agency for the temporary employment of lawyers. She stressed that the agency was kept entirely separate from her practice (separate advertising, books, stationery, accounts, address, and phone), and that she had read ABA Formal Opinion 88-356 (December 16, 1988), "Temporary Lawyers," and believed the agency conformed to it. She asked four questions.

First, she asked whether giving the information found in Formal Opinion 88-356 to other attorneys would constitute the practice of law. The panel looked to the comment to Rule 5.5 (unauthorized practice) and R.I. Gen. Laws § 11-27-2, which defines the practice of law to include giving another person, for consideration, advice or counsel pertaining to a law question. Recognizing that a precise definition is nearly impossible, the panel observed that the attorney would be discussing the opinion only with another attorney, so public-interest factors such as protecting laypersons from inadequate advice did not come into play, and that any consideration paid to her was for placement services, not for legal advice on a quasi-legal opinion. The panel concluded that her explanation of Formal Opinion 88-356 would not fall within the definition of the practice of law.

Second, she asked whether the non-lawyer principal could give attorneys similar information about the opinion. The panel noted that it normally responds only to questions about the inquiring attorney's own conduct, but that Rule 5.5(b), barring a lawyer from assisting a non-member of the bar in the unauthorized practice of law, made the attorney's association with the non-lawyer principal enough to activate the rule and make a response appropriate. For the same reasons (consideration paid for placement, not legal advice), the panel concluded the non-lawyer principal may properly answer questions from the information the inquiring attorney provided her.

Third, she asked whether she could indicate that she is a member of the Rhode Island bar when her name appears in agency advertising. The panel noted that a lawyer is bound by the rules of professional responsibility whether or not acting in a professional capacity (citing ABA Formal Opinion 336 and its own Opinion 87-3), and that under Bates v. State Bar of Arizona the chief remaining limit on advertising is that it not be misleading, as Rule 7.1 defines. Analogizing to a New Jersey opinion permitting a lawyer-CPA to use "C.P.A." on stationery where accurate and not misleading, and noting that the agency ads would run only in professional journals of interest only to attorneys, the panel took the position that she may indicate in agency advertisements that she is an attorney as well as a principal, using either "Esq." or an asterisk referring to a legend stating she is a member of the Rhode Island Bar. The panel expressly overruled its Opinion 68-28 insofar as it conflicted with this position on the appellation "Esquire."

Fourth, she asked whether, when an attorney calls the agency with an assignment she would like to complete herself, she should accept it through her private practice without charging the caller the agency's usual fee. The panel reasoned that if she accepts an assignment it is in her capacity as a qualified sole practitioner, not as an agency principal, and that while it is proper for her to accept an assignment for which she is qualified, it is not proper for the agency to give her preferential treatment by declining to charge the usual placement fee, because doing so would call into question the distinction, which the panel treated as essential, between her role as sole practitioner and her role as agency principal.

Currency note

This opinion was issued in August 1990, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which amended several rules addressed here, and lawyer-advertising and unauthorized-practice law has continued to develop. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Is explaining an ABA ethics opinion to another lawyer the unauthorized practice of law?

A: Under this opinion, no. The panel held that where the audience is another attorney and any payment is for placement services rather than legal advice, explaining ABA Formal Opinion 88-356 does not fall within R.I. Gen. Laws § 11-27-2's definition of the practice of law.

Q: Can a non-lawyer employee relay that same information to lawyers?

A: Per the opinion, yes. The panel concluded that the non-lawyer principal may answer questions from the information the attorney provided, because the consideration is paid for placement, not legal advice, and Rule 5.5(b) is not violated on these facts.

Q: May a lawyer note that she is a member of the bar in ads for a separate business?

A: The panel took the position that she may, in agency advertising run in professional journals aimed only at attorneys, using "Esq." or an asterisk and legend, so long as the designation is accurate and not misleading under Rule 7.1.

Q: Can the agency waive its placement fee when the lawyer-principal takes the assignment herself?

A: No. The panel held that giving her preferential treatment by waiving the usual placement fee would blur the distinction between her role as a sole practitioner and her role as an agency principal, and is not proper.

Background and rules framework

The opinion applies Rule 5.5 (unauthorized practice of law, including Rule 5.5(b)'s bar on assisting a non-lawyer in unauthorized practice) and Rule 7.1 (false or misleading communications) of the Rhode Island Rules of Professional Conduct, adopted effective November 15, 1988, together with R.I. Gen. Laws § 11-27-2's statutory definition of the practice of law. The panel drew on ABA Formal Opinion 88-356 ("Temporary Lawyers"), ABA Formal Opinion 336, a New Jersey ethics opinion on professional designations, and Bates v. State Bar of Arizona.

Citations and references

Rules of Professional Conduct:

• MR 5.5 (unauthorized practice of law)
• MR 7.1 (communications concerning a lawyer's services)
• RI RPC 5.5, 5.5(b), 7.1, as adopted November 15, 1988

Statutes:

• R.I. Gen. Laws § 11-27-2 (1956, 1981 Reenactment), "Practice of law defined"

Cases:

• Bates v. State Bar of Arizona, 433 U.S. 350 (1977), First Amendment protection for attorney advertising limited chiefly by the prohibition on misleading advertising

Other opinions cited:

• ABA Formal Opinion 88-356 (Dec. 16, 1988), "Temporary Lawyers"
• ABA Formal Opinion 336 (June 3, 1974), a lawyer is bound by the rules whether or not acting in a professional capacity
• New Jersey Supreme Court Committee on Professional Ethics Opinion 589 (July 24, 1986), lawyer-CPA may use "C.P.A." designation where accurate and not misleading
• RI EAP Opinion 87-3 (a lawyer is bound by the rules in any capacity)
• RI EAP Opinion 90-13 (panel normally responds only to the inquiring attorney's own conduct)
• RI EAP Opinion 68-28 (overruled insofar as it conflicts on the use of "Esquire")

See also

• RI EAP Op. 88-04: Non-Lawyer Graduate on Firm Letterhead
• RI EAP Op. 90-25: Advertising Designation and the Rule 7.4 Disclaimer
• RI EAP Op. 2006-05: Employing a Non-Lawyer Professional in Practice

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2090-34.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

DIGEST OF ETHICS ADVISORY PANEL
Opinion #90-34, Request #112
Issued August 2, 1990

An attorney seeks Panel advice as to whether she may properly undertake certain activities in connection with her role as a principal in a placement agency for the temporary employment of lawyers.

The attorney first advises the Panel that she has a small private practice as a sole practitioner. The attorney states that in addition to and entirely apart from this private practice she and a non-lawyer are jointly opening a placement agency, "Agency" for temporary employment of lawyers. The attorney stresses that her practice is entirely separate from Agency, noting that it is advertised separately, has its own books, stationery and accounts and is situated at a different address and telephone number. The attorney states that she has read ABA Formal Opinion 88-356, rendered December 16, 1988, titled "Temporary Lawyers" and reported at ABA/BNA Manual on Professional Conduct 401:116 and that Agency conforms to the requirements of this opinion.

The attorney first asks whether it would constitute the practice of law for her to give the information found in Formal Opinion 88-356 to other attorneys. If the answer is that it would constitute the practice of law then the attorney asks whether it is permissible or not for her to give such information when she is functioning as a principal of Agency as opposed to those times when she is functioning as a sole practitioner.

The comment to Rule 5.5, titled "Unauthorized Practice of Law," notes that "[t]he definition of the practice of law is established by law . . ." G.L. 1956 (1981 Reenactment) § 11-27-2, titled "Practice of law defined" provides, in pertinent part that the practice of law includes:

(2) The giving . . . to another person for a consideration direct or indirect, of any advice or counsel pertaining to a law question .

Formulating a precise definition of a "law question" or of the practice of law is virtually impossible. ABA/BNA Manual on Professional Conduct 21:8003. "In our law dominated society, almost every significant financial decision has at least some legal element to it, and legal elements predominate in many common transactions" 1 G. Hazard, The Law of Lawyering 480 (1989). Most courts have defined the practice of law on a case by case basis. Two of the most common themes recurring in questions of what constitutes the practice of law are

[First] that the practice of law serves two interests -- those of individual clients and those of the effective administration of the legal system; and [second] the proposition that the restriction of the practice of law to lawyers is necessary to insure integrity, competence and undivided loyalty to clients. ABA/BNA Manual on Professional Conduct 21:8004.

The Panel noted that in the circumstances the attorney has described, she would be discussing Formal Opinion 88-356 only with another attorney. Thus, public interest factors such as protection of laypersons from inadequate advice and facilitation of the proper and effective administration of justice do not come into play. The Panel also notes that the attorney with whom the inquiring attorney would discuss Formal Opinion 88-356 would be either contemplating or already engaged in a professional relationship with Agency. Under these circumstances any consideration the attorney-client has paid to the inquiring attorney has been paid in connection with placement services, not in connection with obtaining legal advice on the interpretation of a quasi-legal opinion. In light of this fact and the considerations noted above, the Panel concludes that the attorney's explanation of Formal Opinion 88-356 would not fall within the definition of the practice of law.

The attorney next asks whether the non-lawyer principal in Agency, may give attorneys similar information concerning Formal Opinion 88-356. Normally the Panel can respond only to questions about the propriety of the inquiring attorney's own conduct. See, e.g. Digest of Ethics Advisory Panel Opinion 90-13. Rule 5.5, titled "Unauthorized Practice of Law" provides, however, that

A lawyer shall not:

(b) assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.

The attorney's association with the non-lawyer principal is sufficient to activate the prohibition of Rule 5.5(b) and to make Panel response appropriate. In the case of the non-lawyer principal, as in the case of the inquiring attorney, consideration is paid for placement services, not legal advice. The other issues, outlined earlier also remain unchanged. The non-lawyer principal may properly answer questions from information that the inquiring attorney has provided her.

The attorney next asks whether it is permissible for her to indicate that she is a member of the Rhode Island bar when her name appears in Agency advertising. Advertisements for Agency are, of course, advertising a placement service, not a legal service. It is well settled, however, that a lawyer is bound by the applicable rules of Professional Responsibility whether he or she is acting in a professional capacity or otherwise. See ABA Formal Opinion 336 (June 3, 1974); Digest of Ethics Advisory Panel Opinion 87-3.

In Bates v. State Bar of Arizona, 433 U.S. 350 (1977) the United States Supreme Court held that since attorney advertising enjoys First Amendment protection the permissible extent of state regulation is extremely limited. "For all practical purposes the only remaining permissible limitation on advertising -- as distinct from solicitation -- is that it not be misleading." 1 G. Hazard, The Law of Lawyering, 503 (1989). Rule 7.1, titled "Communications Concerning a Lawyer's Services" provides the Rules' definition of "false and misleading" in this context:

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it:

(a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;

(b) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law; or

(c) compares the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated.

In Opinion 589, rendered July 24, 1986, the New Jersey Supreme Court Committee on Professional Ethics ("New Jersey Committee") concluded that it was permissible for an attorney who was also a certified public accountant to use the designation "C.P.A." on his law office stationery, "provided, of course that the designation is accurate and not misleading." The New Jersey Committee added that its position would be the same with regard to adding "C.P.A." to directory listings. The Panel notes that the inquiring attorney's advertisements will be run in professional journals only and are, by their nature, of interest only to attorneys. Any risk is thus eliminated that the attorney's use of Esquire would confuse or mislead. The Panel takes the position that it is permissible for the attorney to indicate in Agency advertisements that she is an attorney as well as a principal. The attorney may use either the appellation "Esq." or an asterisk referring the reader to a legend stating that she is a member of the Rhode Island Bar. This opinion overrules Ethics Advisory Panel opinion 68-28, Request #29 insofar as it is in conflict with the Panel's position regarding the proper use of the appellation "Esquire".

The attorney's final question involves the scenario in which an attorney calls Agency with an assignment which the inquiring attorney feels she would like to complete. In this situation the inquiring attorney asks the Panel whether she should accept the assignment through her private practice and not charge the calling attorney the usual fee charged by Agency.

If the inquiring attorney accepts an assignment, it would be in her capacity as qualified sole practitioner, not in her capacity as a principal of Agency. Thus, although it is entirely proper for the inquiring attorney to accept an assignment for which she is qualified, it is not proper for Agency to give her preferential treatment by declining to charge the usual placement fee. For Agency to treat the inquiring attorney differently would call into question the existence of the crucial distinction between Inquiring Attorney X, Esquire, sole practitioner and Inquiring Attorney X, principal in Agency.

Ethics Advisory Panel advice is protective in nature. There is no requirement that an attorney abide by a Panel opinion, but if he or she does, he or she is fully protected from any charge of impropriety.