Can a lawyer who also sells insurance and investments sell those products to legal clients, advertise the side business, and have clients waive that any product advice is legal advice?

Plain-English summary

A lawyer practicing in estate planning, probate, and real estate was offered a commission sales position with an insurance and investment firm and planned to keep practicing law. The lawyer proposed to sell commission products to existing legal clients only with written consent that would waive the inherent conflict, consent to the commission, and acknowledge that product advice is not legal advice; to run a personal marketing and solicitation campaign for the products without later soliciting legal work from those prospects; and to be identified as a lawyer in the investment firm's promotional materials.

The committee noted that since the 1984 repeal of former Rule 2-102(c), Illinois lawyers may practice law and another business from the same office (Opinions 85-3, 89-14, 90-16), but the legal practice remains governed by the Rules, including confidentiality (Rule 1.6), conflicts (Rules 1.7, 1.8, 1.9), professional independence (Rule 5.4), and advertising (Rules 7.1 through 7.4). On the first question, the lawyer correctly recognized the need for disclosure and informed consent under Rule 1.8(a), but the committee concluded the lawyer may not agree in advance that product advice is not legal advice: such an agreement is essentially a prospective limitation of the lawyer's liability to the client, barred by Rule 1.8(f) unless permitted by law and the client is independently represented, and may also conflict with Rule 1.8(h)'s bar on limiting a client's right to file an ARDC complaint.

On the second and third questions, the committee concluded the Rules place no restriction on soliciting insurance business, and the lawyer may also advertise or solicit legal business within Rules 7.1, 7.2, and 7.3. Because the 1990 Rules dropped the former Code's bar on accepting employment that grew out of unsolicited advice, the lawyer may accept legal employment from insurance or investment customers, though once a customer becomes a legal client all business transactions are governed by the disclosure-and-consent requirements above. The investment firm may identify the lawyer as a lawyer in its materials if those materials meet Rules 7.1 through 7.4; if the lawyer is identified as a lawyer in soliciting business, the lawyer-advertising rules apply.

Currency note

This opinion was issued in 1991, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in May 2010 as generally consistent with the 2010 Rules (Rules 1.6, 1.7, 1.8(a) and (h), 1.9, 5.4, 7.1, 7.2, 7.3, 7.4, and 8.4(h)), while cautioning that the specific standards referenced may differ from the 2010 Rules. 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.

Common questions

Q: Can a lawyer sell insurance or investment products to the lawyer's own legal clients?

A: The opinion concluded the lawyer may, with full disclosure and the client's informed consent under Rule 1.8(a) governing business transactions with clients.

Q: Can the lawyer have clients agree that product advice is not legal advice?

A: No. The opinion concluded such an agreement is essentially a prospective limitation of the lawyer's liability barred by Rule 1.8(f) unless permitted by law with independent representation, and may also conflict with Rule 1.8(h).

Q: Can the lawyer advertise the side business and still take legal work from those customers?

A: The opinion concluded the lawyer may solicit insurance business freely and may accept legal employment from product customers, but once a customer becomes a legal client, the disclosure-and-consent rules for business transactions apply.

Q: Can the investment firm call the lawyer a lawyer in its marketing?

A: The opinion concluded the firm may identify the lawyer as a lawyer if the materials meet Rules 7.1 through 7.4; if the lawyer is identified as a lawyer in soliciting business, the lawyer-advertising rules apply.

Background and rules framework

The opinion applied Rule 1.8(a) (business transactions with clients), Rule 1.8(f) and (h) (limiting liability and complaint rights) to the proposed waiver, Rule 5.4 (professional independence) and Rule 1.6 (confidentiality) to the dual practice generally, and Rules 7.1 through 7.4 (advertising and solicitation) to the marketing of both the products and the lawyer's services (Model Rules 1.6, 1.7, 1.8, 5.4, 7.1, 7.3).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.8 (specific conflicts; business transactions, limiting liability) / Illinois Rule 1.8(a), (f), (h)
• Model Rule 1.7 (conflicts of interest); Model Rule 1.9 (former clients) / Illinois Rules 1.7, 1.9
• Model Rule 1.6 (confidentiality) / Illinois Rule 1.6
• Model Rule 5.4 (professional independence) / Illinois Rule 5.4
• Model Rules 7.1 through 7.4 (advertising and solicitation) / Illinois Rules 7.1, 7.2, 7.3, 7.4

Other opinions cited:

• ISBA Opinions 85-3, 89-14, 90-16: dual professions may operate from one office under the 1990 Rules.

See also

• ISBA Ethics Op. 90-16: Operating a Nonlawyer Business From a Law Office
• ISBA Ethics Op. 23-03: Fee for Referring a Client to an Investment Adviser
• ISBA Ethics Op. 90-37: Solicitation via Written Communication

Source

• Landing page: https://www.isba.org/ethics/opinions/9032