Can a Florida lawyer represent a layman who wants to run a business that sends lien notices, files lien claims, and brings lien foreclosures for other laymen?

Plain-English summary

A member asked whether he could represent a client who wanted to set up a service in which, for a stipulated fee, the client would prepare and mail Notices to Owner for contractors and subcontractors, and would additionally guarantee to handle any problems under the Mechanics' Lien Law, including filing Claims of Lien and instituting lien foreclosure suits, at no extra charge to his customers. The lawyer would be retained by the layman to do the legal work, and the contractors and subcontractors would pay no legal fee themselves.

The committee concluded that the proposal was so clearly the practice of law by a layman that a lawyer's participation would violate former Canon 47, and would also violate Canons 34 and 35, which concern dividing fees with laymen and interposing an intermediary between client and attorney. The committee found it would not be appropriate for an attorney to participate in the arrangement, and emphasized that the proposal did not resemble the group-legal-services arrangements that had been judicially sanctioned in recent years.

Currency note

This opinion was issued in 1969, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied former Canons 34, 35, and 47 of the Canons of Professional Ethics; the assisting-unauthorized-practice concern is now addressed by Rule 4-5.5 (Model Rule 5.5) and the fee-division and intermediary concerns by Rule 4-5.4 (Model Rule 5.4) of the Rules Regulating The Florida Bar. The opinion also relied on Opinion 68-42, which it noted has since been withdrawn. Treat this page as historical context, not current guidance.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: Can a lawyer be retained by a non-lawyer who runs a lien-filing business for others?

A: On the facts of this opinion, no. The committee concluded that the layman's proposed service was itself the practice of law, so a lawyer's participation would assist the unauthorized practice of law in violation of former Canon 47.

Q: Why did the committee also cite the fee-division canons?

A: Because the arrangement routed the served contractors' and subcontractors' legal work through the layman's business, the committee found it also implicated Canons 34 and 35, which address dividing fees with laymen and placing an intermediary between client and attorney.

Background and rules framework

The opinion applied former Canon 47 (aiding the unauthorized practice of law) and Canons 34 and 35 (division of fees with laymen and intervention of intermediaries) of the Canons of Professional Ethics. Those concerns are now addressed by Rule 4-5.5 (Model Rule 5.5) and Rule 4-5.4 (Model Rule 5.4) of the Rules Regulating The Florida Bar. The committee distinguished the proposal from judicially sanctioned group legal services.

Citations and references

Rules of Professional Conduct:

• Canons 34, 35, and 47 [Canons of Professional Ethics; see current Rules 4-5.4 and 4-5.5]

Other opinions cited:

• Florida Opinion 68-42 [since withdrawn]

See also

• FL Bar Ethics Op. 62-26: Suspended Lawyer Doing Legal Research for a Firm
• FL Bar Ethics Op. 17-1: Fee Division With a Nonlawyer-Owned Out-of-State Firm

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-69-15/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-69-15-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 69-15
May 23, 1969
Advisory ethics opinions are not binding.
To represent a lay client in establishing a service to issue lien notices for other laymen, to file claims of lien, and to institute lien foreclosures would constitute assisting the unauthorized practice of law.
Canons: 34, 35 and 47
Opinion: 68-42
Chairman MacDonald stated the opinion of the committee:
A member of The Florida Bar advises that he has been requested to represent a client under the following set of circumstances:
The client desires to set up a service in which, for a stipulated fee, he will mail and generally prepare Notice to Owners for contractors and subcontractors who desire to pay for the service. The client desires to offer his customers the additional service of guaranteeing the customer to handle any problems arising from non-payment, and involving the Mechanics' Lien Law. My client proposes to, at no additional charge to the customer, file Claims of Lien, if necessary, and institute Mechanics' Lien foreclosure suits at no additional charge to his customers. My client wishes to retain my firm on a retainer basis to handle all of the legal work, including the filing of the Claims of Lien and a foreclosure suit, if necessary. My fee will be coming directly from my client and the contractor or subcontractor will be paying no legal fee, but will be limited to paying only for the sending of the Notice to Owner.
We have no question that the proposal is so clearly the practice of law by a layman that it can be said immediately that participation by a lawyer in this endeavor would clearly violate Canon 47 and, moreover, would be equally violative of Canons 34 and 35 relating to the division of fees with laymen and the intervention of intermediaries between clients and attorneys. Accordingly, in our judgment, it would not be appropriate for an attorney to participate in this arrangement. It is particularly to be emphasized that the proposal in question in no remote way resembles the types of group legal services judicially sanctioned in recent years. See our Opinion 68-42 [since withdrawn].