Can a lawyer run a for-profit adoption referral and consulting business alongside a law practice, and advertise the two together?

Plain-English summary

A New Jersey attorney planned to organize and operate a for-profit business offering prospective adoptive parents a "source referral and consultation service," gathering information from licensed adoption agencies, orphanages, and overseas programs, matching parents to agencies, and providing support-group and reading-list information for a fee. The Committee declined to address whether the venture would violate N.J.S.A. 9:3-39a, because construing state statutes is a question of substantive law outside its jurisdiction.

On the ethics questions, the Committee applied its prior opinions. As to accepting law-practice employment from a client of the service, it pointed to Opinion 548 (free seminars), whose rules it found applicable. As to using the inquirer's name to advertise the referral service without the "Attorney at Law" designation, and as to advertising the service in conjunction with the law practice, the Committee relied on Opinion 532, which held there is no prohibition against creating another business but that the business and the law office must be kept entirely separate.

The Committee concluded that, because the law office must be kept entirely separate from any other business venture, advertising the referral and consulting service in conjunction with the practice of law would be improper.

Currency note

This opinion was issued in 1989, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and the rules governing lawyer advertising and law-related (ancillary) businesses have developed since. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Can a lawyer run a separate for-profit business alongside a law practice?

A: Per the opinion, yes. Citing Opinion 532, the Committee noted "there is no prohibition against creating another business, but that the business and the law office must be kept entirely separate."

Q: Can the lawyer advertise the outside business together with the law practice?

A: No. The Committee held that because the law office must be kept entirely separate from any other business venture, advertising the referral service in conjunction with the law practice would be improper.

Q: Did the Committee decide whether the venture violated the adoption statute?

A: No. It declined, explaining that its jurisdiction "does not encompass the construction of state statutes," which is a question of substantive law for the courts.

Background and rules framework

The opinion rests on the Committee's prior advertising and ancillary-business opinions rather than on a numbered Rule of Professional Conduct. The governing principle, drawn from Opinion 532, is that a lawyer may create a separate business but must keep it entirely separate from the law office, and may not advertise the two together. The Committee expressly declined to construe the adoption statute, N.J.S.A. 9:3-39a.

Citations and references

Statutes:

• N.J.S.A. 9:3-39a (adoption; the Committee declined to construe it)

Other opinions cited:

• ACPE Opinion 532, 113 N.J.L.J. 544 (1984) (separate business must be kept entirely separate from the law office)
• ACPE Opinion 548, 114 N.J.L.J. 620 (1984) (free seminars to the public)
• ACPE Opinion 540, 114 N.J.L.J. 387 (1984)

See also

• NJ ACPE Op. 740: Non-Legal Companies Furnishing Lawyers and UPL
• NJ ACPE Op. 698: Direct-Mail Solicitation Prejudicial to the Administration of Justice

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp624-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

123 N.J.L.J. 310, February 9, 1989

OPINION 624

Propriety of Lawyer Operating a For-Profit Business Providing a Source Referral and Consultation Service to Adoptive Parents

Inquirer, a New Jersey attorney, plans to organize and operate a for-profit business to provide to the public a source referral and consultation service to prospective adoptive parents. The business would obtain basic information from licensed adoption agencies nationwide, as well as orphanages, agencies and government programs overseas. The prospective adoptive parents' data would be matched with the requirements of the adoption organizations, and the service would be able to provide to the parents a list of agencies that may be able to meet their needs. The service would also provide general information about parent support groups, reading lists and other relevant information. The prospective parents would be charged an as yet undetermined fee for these services.

Inquirer expresses her opinion that the foregoing facts would not be in direct violation of N.J.S.A. 9:3-39a. This Committee's jurisdiction does not encompass the construction of state statutes (that being a question of substantive law for the courts) and, therefore, we express no opinion as to whether or not the Inquirer would be in violation of N.J.S.A. 9:3-39a.

The ethics questions posed are as follows:

(a) Will it be unethical for the Inquirer to accept employment as a lawyer from a client of the service?

Although Opinion 548, 114 N.J.L.J. 620 (1984) dealt with a subject of free seminars to the public, the same rules would be applicable to the instant inquiry.

(b) Inquirer asks if she can use her name in advertising the proposed Adoption Referral Service without using the designation "Attorney at Law"?

In Opinion 532, 113 N.J.L.J. 544 (1984), we stated that there is no prohibition against creating another business, but that the business and the law office must be kept entirely separate.

(c) Lastly, the Inquirer asks that if a separate business were not established, would it be ethical to advertise the referral and source consulting service in conjunction with the practice of law?

In Opinion 532, supra, we held that a law office must be kept entirely separate from any other business venture and, therefore, the proposed advertising would be improper. See also Opinion 540, 114 N.J.L.J. 387 (1984).