Can a lawyer employed by an accounting firm provide legal services, such as estate planning, to the firm's customers?

Plain-English summary

Opinion E-65-2 asked whether an attorney employed as house counsel for an accounting firm could do estate planning for an accounting customer of the employer. The committee concluded that it would clearly be unethical, adopting the reasoning of ABA Opinion 297. Under that reasoning, a person who becomes a lawyer takes on a mantle he cannot put on or off at will; conduct that constitutes the practice of law when engaged in by a lawyer must meet the profession's ethical standards even if a layman could perform the same activity, and the lawyer cannot escape those restraints by announcing he is acting as a layman.

The committee relied on Canon 47, which forbids a lawyer from permitting his professional services or name to be used to aid or make possible the unauthorized practice of law by any lay agency. While a lawyer-employee may give legal advice to his lay employer on matters personal to the employer, advice given to enable the employer to perform services for the employer's own customer may aid the unauthorized practice of law. The test is not whether the accounting firm could perform a particular service unaided without practicing law, but whether the advice the lawyer-employee supplies would be the practice of law if given directly to the customer.

The committee also applied Canon 35 on intermediaries, under which a lawyer's services should not be controlled or exploited by an intermediary and the lawyer's relationship to the client should be personal and direct. When a lawyer-employee advises a lay employer about a customer's affairs, and that advice would constitute the practice of law if given directly to the customer, the lawyer violates Canon 35 by operating through the employer as an intermediary. The committee noted that the result would be the same under DR 3-101 and DR 3-102 of the Code of Professional Responsibility.

Currency note

This opinion was issued in 1965, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it applies former Canon 47 (aiding the unauthorized practice of law) and Canon 35 (intermediaries). The current counterparts are SCR 20:5.5 / Model Rule 5.5 (unauthorized practice of law; assisting) and SCR 20:5.4 / Model Rule 5.4 (professional independence of a lawyer). 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, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer employed by a non-law business provide legal services to that business's customers?

A: Under this opinion, no, where the advice would be the practice of law if given directly to the customer. The committee held that doing so aids the lay employer's unauthorized practice of law.

Q: Can the lawyer-employee advise the employer at all?

A: Yes, on legal matters personal to the employer. The problem arises when the advice is meant to let the employer render legal services to the employer's own customers.

Q: How is it judged whether the lawyer is aiding unauthorized practice?

A: The committee applied the test from ABA Opinion 297: whether the advice the lawyer-employee gives would involve the practice of law if delivered directly to the customer, not whether the firm could act unaided.

Background and rules framework

The opinion applied former Canon 47 (a lawyer shall not let his services or name aid the unauthorized practice of law by a lay agency) and Canon 35 (intermediaries), and noted the same result under DR 3-101 and DR 3-102. The current counterparts are SCR 20:5.5 / Model Rule 5.5 and SCR 20:5.4 / Model Rule 5.4.

Citations and references

Rules of Professional Conduct:

• Model Rule 5.5 / SCR 20:5.5 (unauthorized practice of law; assisting); former Canon 47, DR 3-101
• Model Rule 5.4 / SCR 20:5.4 (professional independence; intermediaries); former Canon 35, DR 3-102

Other opinions cited:

• ABA Opinion 297: a lawyer-employee may not aid a lay employer's unauthorized practice of law

See also

• WI Ethics Op. E-69-3: Lawyer-Realtor Conflicts in Real Estate Closings
• WI Ethics Op. E-00-02: Sharing Office Space With Unrelated Entities

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-65-2.pdf