Can a lawyer join a barter-and-trade exchange that pays him in redeemable coupons and takes a commission on the business it sends him?

Plain-English summary

A lawyer was offered a proposition by Mr. X, who operated a barter and trade exchange with about ninety members dealing in goods and merchandise. X offered to issue the lawyer $450 in coupons for $500 of legal services at regular fees; the coupons were redeemable among subscribers for merchandise, and X charged a 10% commission for negotiating the exchanges. The lawyer asked whether anything in the arrangement would meet the Board's disapproval.

The Board disapproved the arrangement and said its consummation would merit disciplinary action. It reasoned that the plan would let a lay agency exploit the lawyer's professional services, which Rule 37 forbids where a lay agency intervenes between client and lawyer. Quoting its Advisory Opinion No. 1, the Board said that furnishing, selling, or exploiting the legal services of bar members is derogatory to the profession, and that a lawyer who lets his services be commercialized or dealt in like merchandise is guilty of conduct unbecoming a member of the bar. The Board added that the arrangement would in effect make Mr. X a touter for the lawyer, since the more business X secured the greater his commission, which Rule 29 condemns as securing business by indirection through touters. It closed by invoking Rule 31's command to uphold the honor and dignity of the profession.

Currency note

This opinion was issued in 1933, decades before Oklahoma replaced its original Rules of Professional Conduct (patterned on the ABA Canons of Professional Ethics) with the Oklahoma Rules of Professional Conduct (adopted 1988) and the later Ethics 2000 revisions. The bars on lay exploitation of a lawyer's services and on solicitation through intermediaries are governed today by separate provisions of the current Oklahoma Rules of Professional Conduct. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific principle mentioned here.

Common questions

Q: Could a lawyer take payment in barter-exchange coupons for his services?

A: No. The Board disapproved the arrangement and said it would merit discipline, treating it as the exploitation of the lawyer's services through a lay agency under Rule 37.

Q: What made the exchange operator a "touter"?

A: The operator earned a larger commission the more legal business he secured for the lawyer, which the Board said made him a touter and brought the plan within Rule 29's bar on securing business by indirection.

Q: Why did the Board treat this as crossing the line between trade and a profession?

A: It said letting legal services be dealt in like merchandise lowers professional standards, and that Rule 31 requires members to uphold the honor and dignity of the profession.

Background and rules framework

The opinion applied Rule 37 (no exploitation of a lawyer's services by a lay agency), Rule 29 (no securing business through touters), and Rule 31 (uphold the honor of the profession) of the then-current Oklahoma Rules of Professional Conduct, patterned on the ABA Canons of Professional Ethics, drawing also on its prior Advisory Opinions Nos. 1, 5, and 55.

Citations and references

Rules of Professional Conduct:

• Rule 29 (1929 Oklahoma Rules of Professional Conduct): securing business by indirection through touters is unprofessional.
• Rule 31 (1929): members shall uphold the honor and dignity of the profession.
• Rule 37 (1929): a lawyer's services shall not be exploited by a lay agency intervening between client and lawyer.

Other opinions cited:

• Oklahoma State Bar Advisory Opinion No. 1 (1931 Reports, p. 161): exploiting legal services as merchandise.
• Oklahoma State Bar Advisory Opinion No. 5 (1931 Reports, p. 170).
• Oklahoma State Bar Advisory Opinion No. 55 (July 1933 Bar Journal).

See also

• Okla. Bar Ethics Op. 55: Lawyer as Regional Counsel for a Union Injury-Claims Bureau
• Okla. Bar Ethics Op. 49: Lawyer Representing Members of a Lay Cooperative Association
• Okla. Bar Ethics Op. 53: Lawyer Representing a Debt-Adjustment Company

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-64/

Original opinion text

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

Adopted November 24, 1933

The Board of Governors is in receipt of the following inquiry from a member of the State Bar:

"I have offered to me the following proposition. A Mr. X, of this city, is operating a barter and trade exchange, and has some ninety members handling various goods, wares and merchandise. He offers to issue to me $450.00 worth of coupons for $500.00 worth of services; services to be charged by the regular fees. These $450.00 worth of coupons are redeemable among any of the various subscribers for merchandise of various kinds. The 10% commission charged is his fee for negotiating the exchange or commission on merchandise purchased. From this statement, is there anything in this arrangement that would meet with the disapproval of the Board of Governors?"

In response:

The proposed arrangement is disapproved of and its consummation would merit disciplinary action.

The proposed arrangement would constitute the exploitation of the professional services of the member of the bar by a lay agency. This is interdicted by Rule 37 of the Rules of Professional Conduct of the State Bar of Oklahoma, which provides that "the professional services of a lawyer shall not … be exploited by any lay agency … which intervenes between client and lawyer." This rule further provides:

"A lawyer may accept appointment from any organization such as an association, club or trade organization, to render legal services in any matter in which the organization, as an entity, is interested, but this employment should not include the rendering of legal services to the members of such an organization in respect to their individual affairs."

In this connection see Advisory Opinion No. 1, page 161, Reports of the State Bar for 1931, wherein it is said:

"There is another reason why such a practice is abhorrent The essential dignity of the profession forbids a lawyer to solicit business or exploit 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, tends to lower the standards of professional character and conduct and thus lessens the usefulness of the profession to the public, and that a lawyer who co-operates with, or makes it possible for, others to commercialize the profession and to bring it into disrepute by allowing his services to be exploited, or dealt in like merchandise, is guilty of conduct unbecoming a member of the State Bar of Oklahoma."

See also Advisory Opinion No. 55, page 69, July 1933 Bar Journal.

Furthermore, the proposed arrangement would in effect constitute Mr. X a touter for the inquiring member of the bar–the more business Mr. X secured for him the greater the commission of Mr. X. Rule 29 of the Rules of Professional Conduct condemns this course of conduct in the following language:

"It is equally unprofessional to secure business by indirections through touters of any kind."

See Advisory Opinion No. 5, page 170, Reports of the State Bar for 1931.

The observance of the Rules of Professional Conduct of the State Bar, and in the instant inquiry the particular rules referred to, marks clear the distinction between trade and business and the profession of the practice of law. Rule 31 of the Rules of Professional Conduct enjoins upon the members of the bar that they "strive at all times to uphold the honor and to maintain the dignity of the profession."