Can a law firm help a business corporation sell wills and other legal forms to consumers by mail?
Ohio BPC Opinion 92-015: Law Firm Assisting a Business Corporation in Marketing Legal Forms to Consumers
Short answer: The opinion concluded that a law firm may not help a business corporation market legal forms where the sale includes advice, drafting, and execution instructions, because the firm would aid the corporation's unauthorized practice of law and let it act as an improper intermediary.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Ohio Board of Professional Conduct'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. The opinion text is reproduced at the bottom; the official source (linked) controls.
Plain-English summary
The Board addressed whether a law firm could provide services to a business corporation that planned to market wills, durable powers of attorney, and living wills to consumers through advertising, mail and telephone orders, and educational videotapes. The firm would help write and appear in the videotapes, prepare the basic and finished forms, be available for consumer questions, and approve the advertising, and would be paid by the corporation, including an hourly fee per document. The Board first analyzed whether the corporation's activities constituted the unauthorized practice of law under DR 3-101(A) (a lawyer shall not aid a nonlawyer in the unauthorized practice of law) and Governing Bar Rule VII, citing Ohio case law (Land Title Abstract & Trust Co. v. Dworken; Judd v. City Trust & Savings Bank) and unauthorized-practice determinations in Stark County Bar Ass'n v. Beaman and Akron Bar Ass'n v. Singleton.
The Board then identified intermediary problems. The corporation could improperly influence the lawyer's judgment in violation of DR 5-107(B); the firm would improperly divide fees with a nonlawyer under DR 3-102(A); the firm would accept compensation from someone other than the client in possible violation of DR 5-107(A)(1); the firm would receive improper compensation for a referral under DR 2-103(B); and the structure gave the appearance of a business rather than professional relationship, possibly running afoul of DR 3-103(A).
The Board concluded that the corporation's proposed sale of legal forms falls within the activity proscribed by the Ohio courts and the Board of Commissioners on the Unauthorized Practice of Law, because it includes advice and counseling, preparation and drafting, and instruction on proper execution. It advised that a law firm violates DR 3-101(A) when it renders legal services to assist a business corporation's unauthorized practice of law, and violates DR 5-107(B), DR 3-102(A), DR 5-107(A)(1), DR 2-103(B), and DR 3-103(A) when it lets a business corporation act as an improper intermediary, so the proposed assistance would be improper.
Currency note
This opinion issued in 1992 under Ohio's former Code of Professional Responsibility (superseded by the Ohio Rules of Professional Conduct effective February 1, 2007). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current Ohio Rules of Professional Conduct before relying on any specific rule mentioned here.
Common questions
Q: Can a law firm partner with a company selling will and power-of-attorney forms to the public?
A: Under this opinion, no, where the sale includes advice, drafting, and execution instructions. The Board concluded such assistance would aid the company's unauthorized practice of law.
Q: What was the core unauthorized-practice concern?
A: The opinion concluded the company would be practicing law with the help of the firm's lawyers, because selling the forms included advice and counseling, preparation and drafting, and instruction on proper execution of legal documents.
Q: What rules did the arrangement violate beyond unauthorized practice?
A: The opinion identified DR 5-107(B), DR 3-102(A), DR 5-107(A)(1), DR 2-103(B), and DR 3-103(A), tied to improper influence, fee division with a nonlawyer, third-party compensation, paid referrals, and a business-like relationship.
Background and rules framework
The opinion interprets the former Code of Professional Responsibility DR 3-101(A) (aiding the unauthorized practice of law), DR 5-107(B) and DR 5-107(A)(1) (independence and third-party compensation), DR 3-102(A) and DR 3-103(A) (fee division and partnership with nonlawyers), and DR 2-103(B) (paid recommendations), with Governing Bar Rule VII defining unauthorized practice. The analogous Model Rules provisions include MR 5.5, MR 5.4, and MR 7.2.
Citations and references
Rules of Professional Responsibility (Ohio, former):
- DR 3-101(A), aiding unauthorized practice; Governing Bar Rule VII
- DR 5-107(B), DR 5-107(A)(1); DR 3-102(A), DR 3-103(A); DR 2-103(B)
Cases:
- Land Title Abstract & Trust Co. v. Dworken, 129 Ohio St. 23 (1934)
- Judd v. City Trust & Savings Bank, 133 Ohio St. 81 (1937)
- Stark County Bar Ass'n v. Beaman, 60 Ohio Misc. 2d 17 (1990); Akron Bar Ass'n v. Singleton, 60 Ohio Misc. 2d 19 (1990)
See also
- Ohio BPC Op. 1990-023: Temporary Lawyer Placement Service
- Ohio BPC Op. 1989-031: Lawyer Employed by a CPA Firm
- Ohio BPC Op. 1988-035: Delinquent Registration Is Not Unauthorized Practice
- Ohio BPC Op. 1991-007: For-Profit Lawyer Referral Service and Joint Advertising
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-92-015.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804
OFFICE OF SECRETARY
OPINION 92-15
Issued August 14, 1992
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]
SYLLABUS: A law firm violates Disciplinary Rule 3-101 (A) when it renders legal services to assist in the unauthorized practice of law by a business corporation. A law firm violates Disciplinary Rules 5-107 (B), 3-102 (A), 5-107 (A) (1), 2-103 (B) and 3-103 (A) when it allows a business corporation to act as an improper intermediary between a lawyer and a consumer in need of legal services. Therefore, it would be improper for a law firm to assist a business corporation in marketing legal forms when the sale of such forms includes issuance of advice and counseling, preparation and drafting, and instructions on proper execution of the legal documents.
OPINION: A law firm has been retained by a business corporation to perform services related to the corporation's marketing of wills, durable powers of attorney, and living wills. The law firm inquires as to whether it would violate the Code of Professional Responsibility to provide the proposed services.
The business corporation plans to place advertisements in regional publications to solicit mail and telephone orders for wills, living wills, and powers of attorney. Educational videotapes would be sent to consumers responding to the advertisements explaining the forms requested, asking for information needed to prepare the forms, and offering to make an attorney available to discuss complicated estate plans not addressed by the basic forms. Once the consumer would supply the necessary information, the legal forms would be prepared and sent to the consumer along with an instructional video explaining the proper execution of the legal documents.
The law firm would be asked to assist in writing, producing and appearing in the videotapes, to assist in preparing the basic forms to be used, to assist in preparing the finished documents requested by the consumer, and to be available for direct questions by consumers either through the mail or by telephone. The law firm would have full approval of all advertising. The law firm would be paid for the above services, including an hourly fee for each document prepared.
Under Disciplinary Rule 3-101 (A) of the Code of Professional Responsibility "[a] lawyer shall not aid a non-lawyer in the unauthorized practice of law." Therefore, the Board must consider whether the proposed activities of the business corporation constitute the unauthorized practice of law.
Unauthorized practice is broadly defined in Governing Bar Rule VII (2) (A) of the Supreme Court Rules for the Government of the Bar of Ohio. As defined by the rule, "[t]he unauthorized practice of law is the rendering of legal services for others by anyone not registered under Rule VI [Registration of Attorneys] or certified under Rule II [Limited Practice of Law by Legal Interns], or Rule XI [Limited Practice of Law by Foreign Legal Consultants] of the Rules for the Government of the Bar of Ohio."
The acts that constitute the rendering of legal services are described by the Supreme Court of Ohio in case law. In Land Title Abstract & Trust Co. v. Dworken, 129 Ohio St. 23, 28 (1934) the Supreme Court stated that
[t]he practice of law is not limited to the conduct of cases in court. It embraces the preparation of pleadings and other papers incident to actions and special proceedings and the management of such actions and proceedings on behalf of clients before judges and courts, and in addition conveyancing, the preparation of legal instruments of all kinds, and in general all advice to clients and all action taken for them in matters connected with the law. (quoting People v. Alfani, 227 N.Y. 334, 125 N.E., 671, 1919).
In Judd v. City Trust & Savings Bank, 133 Ohio St. 81, 86 (1937), the court described the acts in the above cited definition as the "performance of legal services for others."
In Stark County Bar Ass'n v. Beaman, the Board of Commissioners on the Unauthorized Practice of Law reviewed a non-attorney's use of a videotape and a brochure as a sales tool to explain probate and trust law and the operation and tax consequences of a revocable living trust prepared by the non-attorney. 60 Ohio Misc. 2d 17 (1990). In Akron Bar Ass'n v. Singleton, the same board considered a-non-attorney's sale of a "dissolution kit" through which the client completes an information sheet and the non-attorney prepares the petition for dissolution of marriage, separation agreement, decree of dissolution, visitation order and child support forms and then meets with client to explain the forms and procedures for filing the documents. 60 Ohio Misc. 2d 19, 1990. In both Beaman and Singleton, the Board of Commissioners on Unauthorized Practice of Law determined that the non-attorneys had engaged in the unauthorized practice of law, and authorized the bar associations to commence an action in a court of competent jurisdiction to obtain a judicial determination. Beaman, 60 Ohio Misc. 2d at 19, Singleton, 60 Ohio Misc. 2d at 20.
The question presented this Board raises concerns regarding the unauthorized practice of law. It also raises concerns regarding an improper intermediary interfering with a lawyer and a consumer in need of legal services. First, there could be improper influence by the corporation as to the lawyer's legal judgment on behalf of the consumers in violation of the requirement of Disciplinary Rule 5-107 (B) that "[a] lawyer shall not permit a person who recommends, employs, or pays him to render legal services for another to direct or regulate his [her] professional judgment in rendering such legal services." Second, since the consumers would be receiving legal services through the business corporation, the lawyers would be involved in improper division of legal fees with a non-lawyer in violation of Disciplinary Rule 3-102 (A). Third, since the law firm is compensated by the business corporation but gives legal advice to both the business and the consumers of the business, there could be a violation of Disciplinary Rule 5-107 (A) (1) that "[e]xcept with the consent of his [her] client after full disclosure, a lawyer shall not: [a]ccept compensation for his [her] legal services from one other than his [her] client." Fourth, the law firm lends value to the services of the business by allowing it to offer the lawyer's services to the consumers, therefore there is improper compensation for a referral as prohibited in Disciplinary Rule 2-103 (B). Finally, although there is an attorney client relationship between the law firm and the business corporation, the structure of the proposed plan gives the appearance of a business relationship rather than a professional relationship, thereby possibly running afoul of Disciplinary Rule 3-103 (A) that prohibits a lawyer from forming a partnership with a non-lawyer when any activities of the partnership consist of the practice of law.
In conclusion, it is this Board's view that the business corporation's proposed sale of legal forms to consumers falls squarely within the activity proscribed by the Ohio courts and by the Board of Commissioners on Unauthorized Practice of Law since it includes the issuance of advice and counseling, preparation and drafting, and instruction on the proper execution of the legal documents. In essence, the business corporation would be practicing law with the assistance of the firm's lawyers. Thus, this Board advises that a law firm violates Disciplinary Rule 3-101 (A) when it renders legal services to assist in the unauthorized practice of law by a business corporation. A law firm violates Disciplinary Rules 5-107 (B), 3-102 (A), 5-107 (A) (1), 2-103 (B) and 3-103(A) when it allows a business corporation to act as an improper intermediary between a lawyer and a consumer in need of legal services. Therefore, it would be improper for a law firm to assist a business corporation in marketing legal forms when the sale of such forms includes issuance of advice and counseling, preparation and drafting, and instructions on proper execution of the legal documents.
Advisory Opinions of the Board of Commissioners on Grievances and Discipline are informal, nonbinding opinions in response to prospective or hypothetical questions regarding the application of the Supreme Court Rules for the Government of the Bar of Ohio, the Supreme Court Rules for the Government of the Judiciary, the Code of Professional Responsibility, the Code of Judicial Conduct, and the Attorney's Oath of Office.