Can an accountant prepare a client's articles of incorporation, or is that the unauthorized practice of law?

Plain-English summary

In one county, unlicensed accountants routinely prepared articles of incorporation and other corporate documents for clients before filing them with the Secretary of State. The question was whether preparing such documents for others constitutes the unauthorized practice of law.

The opinion noted that Rule 5.5 bars assisting a nonlawyer in the unauthorized practice of law but does not itself define that practice, so courts look to the character of the acts: conduct requiring legal skill or knowledge beyond ordinary business intelligence is the practice of law (Quinlan & Tyson; Discipio; Schafer). It concluded that, as a general rule, drafting or preparing articles of incorporation is the practice of law, citing decisions from Florida and Ohio and a 1931 ABA opinion.

The opinion discussed the trend permitting laypersons to complete pre-printed forms without giving or receiving legal advice, and the First Amendment limits on suppressing form sales, noting that selling forms is permissible so long as no personalized advice accompanies them. It observed that the Secretary of State provides incorporation forms and a guide to anyone, suggesting the agency may treat self-completion as permissible. Illinois courts, it concluded, allow people to file their own articles of incorporation without counsel (at their own peril) and allow nonlawyers to fill in purely factual information on standard forms (as in Quinlan & Tyson's earnest-money forms). But it distinguished documents requiring legal skill (Discipio) and concluded that the combination of the nature of corporate documents and assisting another in completing them is the practice of law, pointing to choices like stating the corporate purpose and designating share classes and par value, which require legal advice. It concluded that anyone giving another advice in completing articles of incorporation is unlawfully practicing law, whether or not paid.

Currency note

This opinion was issued in 1995, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in January 2010 as generally consistent with the 2010 Rules (referring to Rule 5.5), while noting the specific standards referenced may differ from the 2010 Rules. Subsequent rule amendments or later opinions may have changed the analysis. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a person file their own articles of incorporation without a lawyer?

A: The opinion concluded yes. An individual may complete and file his or her own corporate documents, including using forms from the Secretary of State, though doing so is at the person's own peril.

Q: Can an accountant prepare articles of incorporation for a client?

A: The opinion concluded no. A nonlawyer, including an accountant, who gives another person assistance or advice in completing articles of incorporation is engaged in the unauthorized practice of law.

Q: Does it matter whether the accountant charges for it?

A: No. The opinion concluded the conduct is the unauthorized practice of law regardless of whether compensation is received; the combination of the documents' nature and assisting another is what matters.

Q: Why are incorporation forms different from a real estate earnest-money form?

A: The opinion concluded that earnest-money forms call only for factual entries (Quinlan & Tyson), while articles of incorporation require legal judgment, such as stating the corporate purpose and designating share classes and par value.

Background and rules framework

The opinion interpreted Rule 5.5 (a lawyer shall not assist a nonlawyer in the unauthorized practice of law; Model Rule 5.5), applying Illinois case law on what constitutes the practice of law (Quinlan & Tyson, Discipio, Schafer) and out-of-state authority on incorporation documents.

Citations and references

Rules of Professional Conduct:

• Model Rule 5.5 (unauthorized practice of law) / Illinois Rule 5.5

Cases:

• Chicago Bar Association v. Quinlan & Tyson, Inc., 34 Ill. 2d 116, 214 N.E.2d 771 (1966), character-of-the-acts test
• In re Discipio, 163 Ill. 2d 515, 645 N.E.2d 906 (1994), documents requiring legal skill
• People ex rel. Illinois State Bar Association v. Schafer, 404 Ill. 45, 87 N.E.2d 773 (1949)

Other opinions cited:

• ISBA Advisory Opinion No. 90-13 (bank preparing land trust agreements is UPL)
• ABA Formal Opinion No. 31 (1931)

See also

• ISBA Ethics Op. 96-04: Practicing Under a Nonlawyer-Owned Corporate Name
• ISBA Ethics Op. 97-03: Corporation Providing Legal Services

Source

• Landing page: https://www.isba.org/ethics/opinions/9507