Can a lawyer team up with a real estate broker to represent homeowners in tax-grievance proceedings if the lawyer just doesn't tell anyone he's a lawyer?
NY State Bar Ethics Opinion 662: Affiliating with a nonlawyer while concealing lawyer status
Short answer: The opinion concluded that representing homeowners in proceedings to reduce real estate taxes is the practice of law, so a lawyer may not affiliate with a nonlawyer real estate broker to do it; and a lawyer cannot escape that prohibition by refraining from disclosing his or her status as a lawyer, because concealing that status in a litigation-like proceeding is itself deceptive conduct.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's 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.
Plain-English summary
A lawyer proposed to affiliate with a real estate broker to represent homeowners in proceedings to obtain review of their real estate taxes, noting that state law lets any person with knowledge of the facts present the petition (RPTL 730(6)) and that the lawyer would not hold himself out as an attorney. The committee answered the question no.
The committee acknowledged that some services may be performed by lawyers and nonlawyers alike, but reiterated that when such services are performed by a lawyer holding himself out as a lawyer they constitute the practice of law (N.Y. State 557 (1984)). The Code bars a lawyer from aiding a nonlawyer in the unauthorized practice of law (DR 3-101(A)) and from forming a partnership with a nonlawyer where any of its activities is the practice of law (DR 3-103(A)). The committee concluded without difficulty that representing a client in a litigation or quasi-litigation proceeding, such as a tax-grievance proceeding, is the practice of law whether or not a nonlawyer may legally perform the same function. It also flagged a likely DR 3-102(A) fee-sharing violation, citing N.Y. State 644 (1992).
The committee then addressed the proposed workaround: that the lawyer would simply not reveal his status as a lawyer. It rejected that device. While not holding oneself out as a lawyer is one factor in the practice-of-law analysis, the committee held that in a litigation-like proceeding concealment does not cure the objection; it creates a new one. Under DR 1-102(A)(4), a lawyer may not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. Drawing on N.Y. State 613 (1990) and ABA authority on undisclosed lawyer participation, the committee held that both the tribunal and the opposing party are entitled to know that the homeowner's representative is a member of the bar rather than an untrained layperson, so the nondisclosure would itself be deceptive. The committee answered the question in the negative.
Currency note
This opinion was issued in 1994, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. 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, deadline, or requirement mentioned here.
Common questions
Q: Is representing homeowners in a tax-grievance proceeding the practice of law?
A: Under this opinion, yes. The committee held that representing a client in a litigation or quasi-litigation proceeding is the practice of law even where a nonlawyer is legally permitted to perform the same function.
Q: Can a lawyer partner with a real estate broker to handle these cases?
A: No. The committee held the arrangement would violate the bar on aiding unauthorized practice (DR 3-101(A)) and on partnering with a nonlawyer in the practice of law (DR 3-103(A)), and likely the fee-sharing bar (DR 3-102(A)).
Q: Does it help if the lawyer simply doesn't say he's a lawyer?
A: No. The committee held that concealing the lawyer's status in a litigation-like proceeding is itself deceptive conduct under DR 1-102(A)(4), because the tribunal and opposing party are entitled to know the representative is a member of the bar.
Background and rules framework
The opinion interpreted New York's former Code: DR 3-101(A) (aiding unauthorized practice), DR 3-103(A) (partnership with a nonlawyer in the practice of law), DR 3-102(A) (sharing legal fees with a nonlawyer), and DR 1-102(A)(4) (dishonesty, fraud, deceit, or misrepresentation). The closest Model Rule analogues are Rule 5.5 (unauthorized practice), Rule 5.4 (professional independence and fee sharing), Rule 8.4(c) (dishonesty and misrepresentation), and Rule 3.3 (candor toward the tribunal). New York replaced the Code with the Rules of Professional Conduct in 2009; the provisions cited here are historical.
Citations and references
Rules of Professional Conduct:
- MR 5.5 (unauthorized practice of law)
- MR 5.4 (professional independence; fee sharing with nonlawyers)
- MR 8.4 (misconduct, including dishonesty)
- MR 3.3 (candor toward the tribunal)
- NY DR 1-102(A)(4); DR 3-101(A); DR 3-102(A); DR 3-103(A)
Other opinions cited:
- N.Y. State 557 (1984): a lawyer holding out as a lawyer is practicing law; no association with an accountant
- N.Y. State 633 (1992): law firm may not associate with a financial-planning company
- N.Y. State 644 (1992): no corporation with nonlawyers for property-tax reductions
- N.Y. State 613 (1990): undisclosed lawyer participation must be disclosed to court and opposing counsel
See also
- NY State Bar Op. 809: Aiding the unauthorized practice of law
- NY State Bar Op. 1068: Claims-recovery firm referrals, UPL, and fee splitting
- NY State Bar Op. 665: Lawyer participation in a barter exchange
Source
- Landing page: https://nysba.org/opinion-662/