Can a lawyer join a nonlawyer consulting firm to provide legal services to its clients and be featured in the firm's marketing brochure?

Currency note

This opinion was issued in 1969, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. The opinion interprets former California Rules 1, 2, and 3, the predecessors to the current rules on advertising, professional independence, and aiding the unauthorized practice of law (current Rules 7.1-7.2, 5.4, and 5.5; Model Rules 7.2, 5.4, and 5.5). The advertising portion also predates Bates v. State Bar of Arizona (1977), which struck many categorical advertising restrictions. 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 Treat this page as historical context, not current guidance.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 or requirement mentioned here.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Plain-English summary

A lawyer asked whether he could associate with a firm of aviation consultants (civil engineers and others) that advises owners of public airports, giving legal advice on federal and state regulations and appearing before agencies and courts. He proposed to participate as a partner, on a contractual basis, or by remaining in private practice and being called on by the firm. The firm also planned a brochure describing each principal, including a biographical sketch identifying the lawyer, his bar memberships, and his background, to be shown to prospective clients.

On the brochure, the committee held that the biographical sketch fell squarely within former Rule 2, section (a), subparagraph (2), which barred using a circular, pamphlet, or any medium of communication to advertise the lawyer's name or the fact of bar membership. That the brochure was composed and circulated by the consulting firm rather than the lawyer did not change its essential nature, so publishing the sketch as described was improper and could subject the lawyer to discipline.

On joining the firm, the committee concluded that the firm, in offering a "complete product" that included solving clients' legal problems, would be engaged in the unauthorized practice of law, and the lawyer would be aiding it. It applied Business and Professions Code section 6105, former Rule 1 (commending the ABA Canons), former ABA Canons 35 (a lawyer's services should not be controlled or exploited by a lay intermediary) and 47 (no aiding unauthorized practice), and former Rule 3 (no aiding unlicensed persons to practice law and no sharing fees with nonlawyers). It found that, whether the lawyer joined as partner or associate or remained in private practice taking the firm's referrals, his services would be controlled by an improper lay intermediary in violation of Canon 35, and any division of fees with the lay members would violate Rule 3 and former Canon 34. The committee concluded the lawyer could not properly join the firm or serve its clients at its request.

Common questions

Q: Could a lawyer let a nonlawyer consulting firm feature him in its client brochure?

A: No. The committee held the biographical sketch was improper advertising under former Rule 2, section (a)(2); that the firm rather than the lawyer produced and distributed the brochure did not change the result.

Q: Could the lawyer join the consulting firm to handle its clients' legal work?

A: No. The committee concluded the firm offering legal services as part of a "complete product" was unauthorized practice, and the lawyer joining as partner, associate, or referral counsel would aid that practice and act under an improper lay intermediary in violation of former Canon 35 and Rule 3.

Q: Did it matter that the lawyer would stay in private practice rather than become a partner?

A: The committee said it did not. Even in private practice, taking the firm's clients at its request would place the lawyer's services under an improper intermediary offering legal work as part of its package, still violating former Canon 35.

Background and rules framework

The opinion interprets former California Rule 2 (solicitation by advertisement), former Rule 3 (aiding unlicensed practice and sharing fees with nonlawyers), and former Rule 1 (commending the ABA Canons), together with Business and Professions Code section 6105 and former ABA Canons 34, 35, and 47. These concerns now appear, in altered form, in Model Rules 7.2 (advertising), 5.4 (professional independence and fee sharing), and 5.5 (unauthorized practice), and the California analogs (Rules 7.1-7.2, 5.4, 5.5).

Citations and references

Rules of Professional Conduct:

• Former California Rules 1, 2, and 3
• Former ABA Canons 34, 35, and 47
• Current analogs: Model Rules 7.2, 5.4, 5.5 / California Rules 7.1-7.2, 5.4, 5.5

Statutes:

• California Business and Professions Code section 6105

Cases:

• Crawford v. State Bar of California (1960) 54 Cal.2d 659 [7 Cal.Rptr. 746], fee division with nonlawyers

Other opinions cited:

• ABA Standing Committee on Professional Ethics, informal decision No. 508 (1962): lawyer preparing instruments at a title company's behest
• L.A. County Bar Association Committee on Legal Ethics Opinions Nos. 262 (1959) and 279 (1963)

See also

• CA Ethics Op. 1969-17: Lawyer Hosting a Radio Program
• CA Ethics Op. 1967-10: Will Pamphlets and Referring Clients to Specialists

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Original opinion: https://www.calbar.org/ethics/Opinions/1969-18.htm

Original opinion text

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

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.

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.