Can a lawyer consult for a living-trust marketing company and take client referrals from its nonlawyer agents?

Plain-English summary

A company marketing financial services, including living trusts, proposed that a lawyer consult with the company's employees about estate-planning documents and also receive referrals of clients who wanted a living trust. The committee was of the opinion that, as proposed, the lawyer's actions with the company's nonlawyer agents and representatives might violate a series of rules.

The committee identified RPC 5.3(c) (responsibility for the conduct of nonlawyer assistants), RPC 5.4(a) (sharing legal fees with nonlawyers), RPC 5.4(b) (partnership with nonlawyers), RPC 5.4(c) (payment for recommendations), RPC 5.5(b) (to the extent the company's activities might involve the unauthorized practice of law), RPC 7.2(c) (payment for recommendation of services), and RPC 7.3(a) (solicitation).

Currency note

This opinion was issued in 1992, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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: Could a lawyer consult for a living-trust marketing company and take its referrals?

A: The committee was of the opinion that, as proposed, the arrangement might violate RPC 5.3(c), 5.4(a)-(c), 5.5(b), 7.2(c), and 7.3(a).

Q: Which concerns did the committee flag about working with the company's nonlawyer agents?

A: Supervision of nonlawyer assistants (5.3(c)), sharing fees and forming a partnership with nonlawyers (5.4(a), (b)), paying for recommendations (5.4(c), 7.2(c)), the unauthorized practice of law (5.5(b)), and solicitation (7.3(a)).

Background and rules framework

The opinion applied the rules on professional independence and the use of nonlawyers, RPC 5.3, 5.4, and 5.5, together with the advertising and solicitation rules RPC 7.2 and 7.3 (corresponding to ABA Model Rules 5.3, 5.4, 5.5, 7.2, and 7.3). The committee treated the living-trust marketing arrangement as touching each: the lawyer would supervise and associate with nonlawyer agents, share in or pay for referred business, and risk assisting the company's unauthorized practice of law.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 5.3 (nonlawyer assistants); Washington RPC 5.3(c)
• ABA Model Rule 5.4 (professional independence); Washington RPC 5.4(a), (b), (c)
• ABA Model Rule 5.5 (unauthorized practice of law); Washington RPC 5.5(b)
• ABA Model Rule 7.2 (advertising; payment for recommendations); Washington RPC 7.2(c)
• ABA Model Rule 7.3 (solicitation); Washington RPC 7.3(a)

See also

• WA Ethics Op. 1460: Assisting a Company in UPL
• ABA Formal Op. 464: Fee Division Across Jurisdictions

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=551

Original opinion text

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

Advisory Opinion: 1471
Year Issued: 1992
RPC(s): RPC 5.3; 5.4; 5.5; 7.2; 7.3
Subject: Association with nonlawyer; division of fees with nonlawyer; assisting unauthorized practice; lawyer representing living trust company and receiving referrals from company

As you were present during the Committee's discussion, you are generally aware of the Committee's opinion in this matter regarding a proposal made to you by a company marketing financial services, including living trusts. [The lawyer would consult with the company's employees about estate planning documents and also receive referrals of clients who wanted a living trust. The Committee was of the opinion that as proposed, the actions of the lawyer involved with the agents and representatives of the company who are non-lawyers might be in violation of RPC 5.3(c) regarding responsibility for the conduct of non-lawyer assistants; 5.4(a) regarding sharing of legal fees with non-lawyers; 5.4(b) regarding partnership with non-lawyers; 5.4(c) regarding payment for recommendations; 5.5(b) to the extent the activities of the company might involve the unauthorized practice of law; 7.2(c) regarding payment for recommendation of services; and 7.3(a) regarding solicitation.