Can a lawyer accept employment from a real estate broker's tax-advisory company that solicits taxpayers and hires the lawyer to pursue their tax-reduction claims?

Plain-English summary

A member asked about the propriety of accepting employment from a real estate broker who operated a so-called "tax advisory company." Under the facts, a certified public accountant, and possibly others, solicited business for the broker, who then contracted with members of the public to obtain ad valorem tax reductions in Dade County. The broker filed a formal complaint with the Board of Equalization and then employed an attorney, at the broker's expense, to present the matter to the Board. The taxpayer did not participate in selecting the attorney.

The committee was unanimous that participation in the described arrangement was highly improper. It held the arrangement was a clear violation of Canon 35, which prohibits the practice of law through an intermediary. It added that the attorney very likely was aiding the unauthorized practice of law contrary to Canon 47, was likely sharing legal fees with a layman contrary to Canon 34, and was obtaining legal practice through solicitation contrary to Canon 27.

Currency note

This opinion was issued in 1964, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct, and before the United States Supreme Court's decision in Bates v. State Bar of Arizona, 433 U.S. 350 (1977), which reshaped the law governing lawyer solicitation and advertising. The opinion applied former Canons 27, 34, 35, and 47 of the Canons of Professional Ethics; the Bar's own annotation directs the reader to current Rules 4-7.18(a) (solicitation), 4-5.4(a) (professional independence and fee-sharing), and 4-5.5(a) (unauthorized practice) of the Rules Regulating The Florida Bar (Model Rules 7.3, 5.4, and 5.5). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Why was the arrangement improper if the lawyer did the legal work competently?

A: The committee's objection was structural. A lay company solicited the clients, selected and paid the lawyer, and stood between the lawyer and the taxpayer, which the committee held was the practice of law through an intermediary under Canon 35.

Q: What separate violations did the committee identify?

A: Beyond practice through an intermediary, the committee found the lawyer was likely aiding the unauthorized practice of law (Canon 47), sharing fees with a layman (Canon 34), and obtaining practice through solicitation (Canon 27).

Background and rules framework

The opinion applied former Canons 27 (advertising and solicitation), 34 (fee division with laymen), 35 (intermediaries and professional independence), and 47 (aiding unauthorized practice) of the Canons of Professional Ethics. The Bar's annotation maps these to current Rule 4-7.18(a) (direct solicitation), Rule 4-5.4(a) (professional independence and sharing fees with nonlawyers), and Rule 4-5.5(a) (unauthorized practice) of the Rules Regulating The Florida Bar (Model Rules 7.3, 5.4, and 5.5). The analysis turns on the lay company's control of client selection and payment.

Citations and references

Rules of Professional Conduct:

• Canons 27, 34, 35, 47 [Canons of Professional Ethics; see current Rules 4-7.18(a), 4-5.4(a), 4-5.5(a)]

See also

• FL Bar Ethics Op. 64-25: Multidisciplinary Building-Services Corporation
• FL Bar Ethics Op. 64-33: Estate Analyses for an Insurer's Prospects

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-64-29/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-64-29-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 64-29
June 20, 1964
Advisory ethics opinions are not binding.
It is improper for an attorney to accept employment from a real estate broker operating a so-called "tax advisory company," whereby the broker solicits business and then employs the attorney to present the demand for ad valorem tax reductions to an administrative board.
Canons: 27, 34, 35, 47 [See current 4-7.18(a), 4-5.4(a), 4-5.5(a)]
Chairman Smith stated the opinion of the committee:
A member of The Florida Bar requests an opinion regarding the propriety of an attorney accepting employment from a real estate broker who operates a so-called "tax advisory company." Under the facts related, a certified public accountant, and possibly others, solicits business for the broker, who contracts with members of the public to obtain ad valorem tax reductions in Dade County. The broker files a formal complaint with the Board of Equalization and then employs an attorney to present the matter to the Board at the expense of the real estate broker. The taxpayer does not participate in the selection of the attorney.
It is the unanimous opinion of this Committee that it is highly improper for an attorney to participate in the described arrangement. The arrangement, in the opinion of this Committee, constitutes a clear violation of Canon 35 [See current Rule 4-5.5(a)], which prohibits the practice of law through an intermediary. In addition, it seems quite likely that the attorney is aiding in the unauthorized practice of law contrary to the provisions of Canon 47 [See current Rule 4-5.5(a)] and, very likely, he is also sharing legal fees with a layman contrary to Canon 34 [See current Rule 4-5.4(a)] and obtaining legal practice through solicitation, contrary to Canon 27 [See current Rule 4-7.18(a)].