NYSBA 2017-10-10

Can a lawyer who is also a CPA make unsolicited cold calls offering accounting services that overlap with legal work?

Short answer: No. When the accounting services are not distinct from the lawyer's legal services, Rule 5.7(a)(1) makes all the Rules apply, including Rule 7.3's ban on in-person and telephone solicitation of strangers, even though the accounting profession would allow such calls.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

NY State Bar Ethics Opinion 1135: Cold-calling by a lawyer who is also a CPA

Short answer: A lawyer who is also a certified public accountant may not make unsolicited in-person or telephone calls offering tax services to strangers when those services are not distinct from the lawyer's legal services, because Rule 5.7 makes the Rules (including Rule 7.3's solicitation ban) apply to the whole integrated practice.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

View original opinion

Plain-English summary

The inquirer is licensed as both a lawyer and a CPA and plans a solo practice offering state and local tax services, legal and accounting, as one integrated operation. Most of the services could be performed by either a lawyer or an accountant. The inquirer wants to cold-call strangers to offer the accounting services, disclosing the law license but proposing to be retained only as an accountant, and asks whether that conflicts with the Rules even though the accounting profession permits such calls.

The committee analyzes Rule 5.7, which lets a lawyer offer nonlegal services but distinguishes services "not distinct" from legal services (Rule 5.7(a)(1)) from those that are "distinct" (Rule 5.7(a)(2)). When the services are not distinct, all the Rules apply to everything the lawyer does; when distinct, the Rules apply only in certain circumstances and disclaimers can keep them off the nonlegal work. Comparing the provider, the substance of the services, the recipient, and the integrated manner of delivery, the committee finds the proposed tax accounting services are not distinct from the lawyer's legal services (citing N.Y. State 1026, 832, and 992). It notes the acute risk of client confusion when a lawyer renders both legal and nonlegal services on the same matter (Rule 5.7 Comment [1]).

Because the Rules therefore apply in full, the prohibition on solicitation applies. Rule 7.3(a)(1) bars in-person or telephone solicitation (with exceptions for close friends, relatives, former clients, and existing clients), reflecting the historic concern that a trained advocate may pressure a potential client. The committee also flags Rule 7.3(c)'s other duties (filing the solicitation, keeping recipient records) and Rule 7.1's advertising rules.

In practice

Under this opinion, a lawyer-CPA running an integrated tax practice may not cold-call strangers to pitch accounting services that are not distinct from the lawyer's legal services. Because Rule 5.7(a)(1) makes the Rules apply to the entire integrated practice, Rule 7.3(a)(1)'s ban on in-person and telephone solicitation governs the calls, notwithstanding that the accounting profession alone would permit them. The same conduct also triggers Rule 7.3(c)'s solicitation duties and Rule 7.1's advertising requirements.

Common questions

Q: Does it matter that the accounting profession allows cold calls?

A: No. Once Rule 5.7(a)(1) makes the Rules apply to the integrated practice, Rule 7.3(a)(1)'s solicitation ban controls regardless of what the accounting rules permit (Opinion 1135 ¶¶ 8-10).

Q: When are nonlegal services "not distinct" from legal services?

A: When the provider, the substance of the services, the recipient, and the integrated manner of delivery substantially overlap, the services are not distinct and all the Rules apply (¶¶ 6-8).

Q: Could the lawyer cold-call existing or former clients?

A: Rule 7.3(a)(1) excepts close friends, relatives, former clients, and existing clients from the in-person and telephone solicitation ban; the prohibition here is about contacting strangers (¶ 9).

Background and rules framework

The opinion applies Rule 5.7 (Model Rule 5.7) on a lawyer's responsibilities for nonlegal services, turning on whether the services are "distinct" (5.7(a)(2)) or "not distinct" (5.7(a)(1)), and then Rule 7.3 (Model Rule 7.3) on solicitation, particularly the 7.3(a)(1) ban on in-person and telephone contact and 7.3(c)'s recordkeeping and filing duties, together with Rule 7.1 (Model Rule 7.1) on advertising.

Citations and references

Rules of Professional Conduct:

New York Rule 5.7(a), (c) (Model Rule 5.7): nonlegal services; "distinct" vs. "not distinct"
New York Rule 7.3(a)(1), (b), (c) (Model Rule 7.3): solicitation; in-person and telephone ban
New York Rule 7.1 (Model Rule 7.1): advertising content and the attorney-advertising label

Other opinions cited:

N.Y. State 938 (2012): definition of "nonlegal services" under Rule 5.7
N.Y. State 1026 (2014): mediation tied to a divorce representation is not distinct
N.Y. State 832 (2009); N.Y. State 992 (2013): nonlegal advice that becomes legal services

Source

Landing page: https://nysba.org/ethics-opinion-1135/