Editor's Note:
State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
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May an attorney ethically associate with a firm of aviation consultants for the purpose of rendering legal advice in connection with the preparation of plans for the location and construction of public airports? If so, is it proper to use a biographical resume of the attorney for inclusion in a written brochure for presentation to the clients of the firm?
Rules 1, 2 and 3 of the Rules of Professional Conduct of the State Bar.1
The opinion of this Committee is sought concerning the propriety of the proposed association of an attorney with a firm of aviation consultants, consisting of civil engineers and others, which offers consultation services to owners and prospective owners of public airports and prepares plans for the location and construction of said airports. The lawyer's participation in the firm would include giving advice on laws, rules and regulations of federal and state agencies, including appearances before regulatory agencies and, perhaps, the courts. The participation in the firm by the lawyer would probably be as a partner or on some contractual basis, although it is possible that he would remain in private practice and be called on by the firm from time to time.
In addition, in connection with its activities, the firm proposes to prepare a written brochure of the principals of the firm for presentation to prospective clients. The propriety of including a biographical sketch of the lawyer in which he is identified as an attorney who is a member of various bars and associations, with a further description of his law school graduation and employments since that time, is also questioned. While it is not intended that the biographical brochure would be widely disseminated, it would be made available to clients who are considering whether to engage the services of the firm. Information received from a principal in the firm indicates that, in some circumstances, "it is almost as though each associate [in the firm] were making his own deal directly with the client."
The foregoing factual situation calls into consideration at least two general questions of the type frequently considered by this Committee. First, would the inclusion of biographical material in a brochure for presentation to prospective clients violate the law or the rules of professional employment? Second, by participating with or in the proposed firm, does the lawyer run afoul of the law or of the Canons of Ethics which proscribe aiding unauthorized persons in the practice of law?
We turn our attention to the first question. The question of what constitutes improper advertising, soliciting, self-laudation and the like has been considered on numerous occasions and in various factual settings by the Committee on Professional Ethics of the American Bar Association and by other ethics committees, including this Committee. In California, the subject is specifically covered by the Rules of Professional Conduct of the State Bar. Rule 2, section (a), provides as follows:
"A member of the State Bar shall not solicit professional employment by advertisement or otherwise.
"Without limiting the generality of the foregoing a member of the State Bar shall not solicit professional employment by
"(1) Volunteering counsel or advice except where ties of blood relationship or trust make it appropriate.
"(2) Using a newspaper, magazine, radio, television, books, circulars, pamphlets, or any medium of communication, whether or not for compensation, to advertise the name of the lawyer or his law firm or the fact that he is a member of the State Bar or the bar of any jurisdiction; nothing herein shall be deemed to prevent the publication in a customary and appropriate manner of articles, books, treatises or other writing."
In the factual situations presented here, this Committee feels that the inclusion of the proposed biographical sketch of the lawyer in the firm's brochure falls squarely in the proscription of rule 2, section (a), subparagraph 2, of the Rules of Professional Conduct. The document in question is clearly a "circular, pamphlet or medium of communication" which is being used to advertise the name of the lawyer and the fact that be is a member of the State Bar. It is clear in the example at hand that the services to be rendered by the lawyer to any prospective client are legal services and the fact that the proposed brochure is composed and also disseminated by the consulting firm rather than the lawyer himself does not change the essential nature of the publication. Thus, since it falls squarely within the proscription of rule 2, section (a) subparagraph (2) of the Rules of Professional Conduct, the Committee is of the opinion that publication by the lawyer of a biographical sketch in the brochure in the manner described is improper and could subject the lawyer to disciplinary action by the State Bar.
Turning to the second question, we first proceed further to amplify the statement of facts. We are advised by one of the principals of the firm of aviation consultants that one of the purposes of the firm, and of the lawyer's participation therein, is to enable the firm to produce a complete product which would satisfy the clients' needs. It is clear that the function which the firm expects to serve, that is, advisory services in connection with location and construction of airports, includes not only engineering and other services, but legal services as well. The purpose of associating the lawyer with the firm is to enable the firm "to produce a complete product" for its clients.
In a very real sense, in the circumstances here, in offering a complete product to its clients, the proposed firm is offering to solve the clients' legal problems as a part of the complete package of services offered. In the view of this Committee, this calls into question the following legal and ethical principles:
1. Section 6105 of the Business and Professions Code provides "... lending his name to be used as an attorney by another person who is not an attorney constitutes a cause for disbarment or suspension."
Rule 1 of the Rules of Professional Conduct, in part, provides:
"The specification in these rules of certain conduct is professional is not to be interpreted as an approval of conduct not specifically mentioned. In that connection, the Canons of Ethics of the American Bar Association are commended to the members of the State Bar..."
The following canons of ethics of the American Bar Association should be considered:
[Former] canon 35 reads as follows:
"The professional services of a lawyer should not be controlled or exploited by any lay agency, personal or corporate, which intervenes between client or lawyer. A lawyer's responsibilities and qualifications are individual. He should avoid all relations which direct the performance of his duties by or in the interest of such intermediary. A lawyer's relation to his client should be personal, and the responsibility should be direct to the client. Charitable societies rendering aid to the indigent are not deemed intermediaries."
[Former] canon 47 reads as follows:
"No lawyer shall permit his professional services, or his name, to be used in aid of, or to make possible, the unauthorized practice of law by any lay agency, personal or corporate."
Rule 3 of the Rules of Professional Conduct of the State Bar provides, in part:
"A member of the State Bar shall not employ another to solicit or obtain, or remunerate another for soliciting or obtaining, professional employment for him; nor, except with a person licensed to practice law, shall he directly or indirectly share compensation arising out of or incidental to professional employment; nor shall he directly or indirectly aid or abet any person not so licensed, or any association or corporation, to practice law or to receive compensation therefrom. A member of the State Bar shall not knowingly accept professional employment offered to him as a result of or as an incident to activities of any person not so licensed or of any association or corporation that for compensation controls, directs or influences such employment,..."
In the fact situation presented, the legal problems which the lawyer would be called upon to solve would not be those of the consulting firm itself but of its clients, the prospective owners of the airports in question. In representing his new clients, the lawyer may find himself with an adverse interest to his clients by reason of his relationship with the consulting firm. To the extent that the lawyer renders such services as a partner or an associate in any capacity of the consulting firm, it will certainly appear that the services of the lawyer are controlled or exploited by the consulting firm, and the provisions of [former] canon 35 may be violated. Moreover, to the extent that the consulting firm offers to solve all of the problems which arise in the creation of a private or public airport, including the legal problems, it may be presumed to be practicing law. It would seem clear that the lawyer, in joining such a firm, could be held to be aiding in the unauthorized practice of law. (See L.A. Co. Bar Assn. Committee on Legal Ethics, Opn. No. 262 (1959) and editor's note appended thereto.) In the light of the foregoing conclusions, it is the opinion of this Committee that it would be improper for the lawyer to join the proposed consulting firm either as an associate or as a partner in the firm.
If the lawyer remains in private practice, he may not run afoul of the laws and canons against aiding unauthorized practice but he would have difficulty in meeting the standards relating to intermediaries. The proposed format of operation of the consulting firm includes legal services as part of the "complete product." Thus, even if the lawyer remains in private practice in rendering the contemplated legal services, he would act on behalf of an improper intermediary and would be in violation of [former] canon 35. In a similar situation, it has been held that a lawyer cannot properly prepare deeds, trusts, or mortages at the behest of a title insurance company for clients of the company (ABA Standing Comm. on Prof. Ethics, informal decision No. 508 (1962).) The fact that the lawyer is engaged in a specialized type of practice does not alter the result. (See ABA Code of Prof. Responsibility, [former] canon 45.)
Finally, to the extent that the fees that are charged for the legal services rendered are divided up with lay members of the consulting firm, the above-quoted provision of rule 3 of the Rules of Professional Conduct, as well as [former] canon 34 of the American Bar Association Canons of Ethics, are violated. (Crawford v. State Bar of California (1960) 54 Cal.2d 659 [7 Cal.Rptr. 746]; and, see L.A. Co. Bar Assn. Committee on Legal Ethics, opn. No. 279 (1963).)
It is the opinion of this Committee that, upon the facts outlined here, the lawyer may not properly join the proposed consulting firm or serve its clients at its request as private counsel.
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.
1 [PUBLISHER'S NOTE: A complete revision of the Rules of Professional Conduct was approved by the Supreme Court effective January 1, 1975. (See (1975) 14 Cal. 3d Rules 1 and "Cross Reference of Present Rules of Professional Conduct to Former Rules of Professional Conduct," in Part III.D.)]
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