May a bank's salaried trust officer who is also a lawyer give legal advice to bank patrons, and may the bank advertise his name as performing those services?

Plain-English summary

The committee was asked two questions about an attorney employed as a bank trust officer: whether it is improper for him to perform a service for a bank patron that would constitute the practice of law if done by an attorney, and whether it is unethical for him to let his name appear in the bank's advertising of trust-department services that would be the practice of law if done by a lawyer.

The committee held that advice on matters constituting the practice of law, given to the public by an attorney employed by a bank even while holding himself out as a trust officer, is unethical, and that such an attorney remains entirely subject to the Canons. It quoted Canon 35 for the principle that a lawyer's professional services should not be controlled or exploited by any lay agency intervening between client and lawyer, and that a lawyer's relation to the client should be personal with direct responsibility to the client. Because a lawyer cannot share professional responsibility, or therefore professional emoluments, with a lay agency, the committee said he cannot let his services be sold or dealt in by a layman, and cannot have another do for him what he cannot properly do himself. It characterized the furnishing, selling, or exploiting of lawyers' services as derogatory to the dignity of the profession, and said it does not matter that the employer makes no direct charge, because an indirect advantage to the employer is inherent.

The committee drew one distinction: where the bank acts in a fiduciary capacity, the matter changes character, because the bank is then only the nominal client and the real interests the attorney protects are the patron's. Those separate interests can only be properly represented by an attorney free of the master-servant obligation, able to exercise independent judgment for the interest represented rather than under the domination of a salaried position. The committee concluded it is improper for an attorney to aid a trust company or corporation to practice law, and equally unethical to let a bank or corporation use his name in advertisements indicating he will perform services that constitute the practice of law, citing Canon 27's bar on permitting one's professional services or name to be used to make possible the unauthorized practice of law by any lay agency.

Currency note

This opinion was issued in 1966, during the era of the Canons of Professional Ethics, before Oklahoma adopted the Oklahoma Rules of Professional Conduct (1988) and the later Ethics 2000 revisions. The principles the opinion applied survive in modern form, including the lawyer's professional independence from a lay employer (now Rule 5.4) and the bar on aiding the unauthorized practice of law (now Rule 5.5); the advertising premises were affected by Bates v. State Bar of Arizona, 433 U.S. 350 (1977), which held categorical bans on truthful lawyer advertising unconstitutional. 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: Could a lawyer working as a bank trust officer give legal advice to the bank's customers?

A: Under this opinion, no. The committee held that advice constituting the practice of law, given to the public by an attorney employed by a bank even as a trust officer, is unethical, and that he remains fully subject to the Canons.

Q: Could the bank advertise the trust officer's name in promoting its trust-department services?

A: No. The committee concluded it is unethical for an attorney to let a bank use his name in advertisements indicating he will perform services that constitute the practice of law, contrary to Canon 27.

Q: Did the analysis change when the bank acted as a fiduciary?

A: It changed character. The committee said the bank is then only the nominal client, and the patron's interests can only be properly represented by an attorney free to exercise independent judgment, not one under the domination of a salaried position.

Background and rules framework

The opinion applied Canon 6 (representing conflicting interests), Canon 27 (advertising and aiding unauthorized practice), Canon 35 (a lawyer's professional services should not be controlled or exploited by a lay intermediary), and Canon 47 (aiding the unauthorized practice of law) of the Canons of Professional Ethics, adopted in Oklahoma. The lay-intermediary and independence principles correspond to today's Model Rule 5.4, and the bar on aiding unauthorized practice to Model Rule 5.5. The opinion predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Canon 6 (ABA Canons of Professional Ethics, adopted by the Oklahoma Bar): representing conflicting interests.
• Canon 27: bars advertising and permitting one's name or services to make possible the unauthorized practice of law by a lay agency.
• Canon 35: a lawyer's services should not be controlled or exploited by a lay intermediary; the lawyer's relation to the client should be personal.
• Canon 47: a lawyer should not aid the unauthorized practice of law.

Other opinions cited:

• ABA Committee on Professional Ethics Opinions Nos. 10, 31, 32, 35, 60, and 122, and Informal Opinions C754, C799, C746, and C837.
• Oklahoma Bar Association Opinions Nos. 238 and 240.

See also

• Okla. Bar Ethics Op. 240: Lawyer-adjuster contacting a represented party
• Okla. Bar Ethics Op. 231: Counsel listing in a savings-and-loan statement
• Okla. Bar Ethics Op. 232: A lawyer's interest in an abstract company

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-244/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Adopted September 16, 1966

INQUIRY

Is it improper for an attorney-trust officer of a bank to perform a service for a patron, of his employer bank, which, if performed by an attorney, constitutes the practice of law?

Is it unethical for a salaried trust officer of a bank, who is also an attorney, to permit his name to be published in advertising by the bank of services rendered by its Trust Department to the public, which would be considered the practice of law when done by an attorney?

OPINION

Advice to the public concerning matters which constitute the practice of law when done by an attorney, given by an attorney employed by a bank, even though he is holding himself out as a trust officer, of the bank, is an unethical practice. An attorney in such a position must consider himself with due objectiveness required of him as a lawyer at all times and remember that he is entirely subject to the canons of professional ethics.

Canon 35 states:

"That the professional services of a lawyer should not be controlled or exploited by any lay agency, personal or corporate, which intervenes between client and lawyer. A lawyer's responsibilities and qualifications are individual. He should avoid all relations which direct the performance of his duties by or in the interest of such intermediary. A lawyer's relation to his client should be personal, and the responsibility should be direct to the client."

Since a lawyer cannot share his professional responsibility with a layman or a lay agency, it follows that he cannot properly share his professional emoluments with them. This of itself is sufficient to render it improper for a lawyer to allow his services to be sold or dealt in by any layman or lay agency. The canons of ethics by which a lawyer is bound explicitly prohibit a lawyer from soliciting business or exploiting his professional services. It follows that he cannot properly enter into any relations with another to have done for him that which he cannot properly do for himself.

It must, therefore, be held that the furnishing, selling or exploiting of the legal services of members of the Bar is derogatory to the dignity and self-respect of the profession. It tends to lower the standard of professional character and conduct and thus lessens the usefulness of the profession to the public. A lawyer is guilty of misconduct, when he allows his services to be exploited or dealt in, making it possible for others to commercialize the profession and bring it into disrepute. It matters not that no direct charge is made by his employer for his services, as an indirect advantage to his employer is inherent.

In part of the question presented, the attorney's employer is acting in a fiduciary capacity, and the matter therefore assumes an entirely different character. In that event, the attorney's employer, the bank, is only the nominal client; the actual interests which the attorney is engaged to protect are those of the patron of the bank. Such a separate interest can only be properly represented by an attorney, who in his professional capacity is under no obligation to another, such as that which must exist between master and servant. He must be free to exercise his independent judgment as an attorney for the benefit of the interest he represents, which he could not be expected to do while under the domination of a third party as its salaried servant.

In our opinion it is improper for an attorney to aid a trust company or corporation to practice law, and it is equally unethical for him to allow a bank or corporation to utilize his name in advertisements which would indicate that he will perform services which, when performed by an attorney, constitute the practice of law. This is clearly contrary to Canon 27: "No lawyer shall permit his professional services or his name, to be used in aid of or to make possible, the unauthorized practice of law by any lay agency, personal or corporate."

See Canons 6, 27, 35 and 47 of the American Bar Association. Opinions Number 10, 31, 35, 32, 122, and 60 of the American Bar Association, and Informal Opinions C754, C799, C746, and C837 of the Committee of Professional Ethics of the American Bar Association, and Opinions 238 and 240 of the Legal Ethics Committee of the Oklahoma Bar Association.